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of 

Three  Distinguished  and  Devoted 
Teachers 

RUSSELL  McCULLOCH  STORY 

1883-  1942 

GEORGE  SAMUEL  BURGESS 

1881  -  1942 

EDWARD  McCHESNEY  SAIT 

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Political  Science  Library 
Pomona  College 


THE   INITIATIVE 
REFERENDUM   AND   RECALL 


The 

National  Municipal  League  Series 

EDITED    BV 

CLINTON  ROGERS  WOODRUFF 

Secretary  of  the  Natiomil  Municipal  League 


City  Government  by  Commission 

Edited  by  Clinton  Rogers  Woodruff 
i2mo.     Cloth,  $1.50  net 

The   Initiative,    Referendum,    and    Recall 

Edited  by  William  Bennett  Munro 
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The  Regulation  of  Municipal  Utilities 

Edited  by  Clyde  Lyndon  King 
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OTHER  VOLUMES  IN  PREPARATION 

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New  York  London 


173 


NATIONAL    MUNICIPAL    LEAGUE    SERIES 


THE  INITIATIVE 
REFERENDUM 
AND    RECALL 


EDITED    BY 


WILLIAM    BENNETT    MUNRO 


NEW    YORK    AND    LONDON 

D.    APPLETON     AND     COMPANY 

1912 


Copyright,  1912,  by 
D.  APPLETON  AND  COMPANY 


Puhlished  June,  1912 


Printed  in  the  United  States  of  America 


PREFACE 

This  volume  represents  a  substantial  contribution 
to  the  further  careful  and  thoughtful  discussion  of  a 
widely  considered  plan  of  reform.  Professor  Munro 
brings  to  his  task  as  editor  not  only  a  comprehensive 
knowledge  of  the  subject  treated — direct  legislation  as 
it  is  popularly  known — and  a  deep  sympathy  with  the 
movement  to  correct  the  undoubtedly  and  undisputed 
evil  results  of  representative  government,  but,  what 
is  of  prime  importance,  a  sound  perspective  and  with- 
out local  prejudice. 

Some  of  the  chapters  in  the  volume  are  new,  hav- 
ing been  specially  prepared  for  it.  Others  have  been 
taken  from  the  substantial  list  of  papers  which  have 
been  presented  to  the  National  Municipal  League  dur- 
ing the  past  decade  of  years.  Still  others,  like  those 
of  Colonel  Roosevelt  and  Congressman  McCall,  have 
been  selected  from  the  current  periodical  discussion  of 
the  problem.  All  have  been  brought  together  by  Mr. 
Munro  in  furtherance  of  the  League's  function  as  an 
f)pen  forum,  to  give  both  sides  fairly,  and  to  recount 
results  fairly,  so  that  the  publicist  and  student  may 
form  an  enlightened  and  .sound  opinion. 

Chosen  for  this  purpose,  the  articles  are  not  the 


PREFACE 

hasty  words  of  agitators  or  demagogues,  but  the 
thoughtful  utterances  of  public  men  of  experience, 
who  appreciate  the  problem  and  its  difficulties  and 
their  own  responsibilities  as  leaders. 

The  Initiative,  Referendum  and  Recall  are  here, 
and  we  are  destined  to  hear  more,  rather  than  less,  of 
them.  Whether  they  are  to  become  permanent  fea- 
tures of  our  governmental  (federal,  state  and  munici- 
pal) machinery,  or  merely  to  afford  the  means  of  cor- 
recting the  abuses  of  the  present-day  operation  of 
representative  government,  is  a  question  which  only 
time  will  determine.  This  volume  is  put  forth  with 
the  expectation  that  it  will  afford  definite,  dispassion- 
ate information  and  careful,  disinterested  argument, 
so  that  the  most  may  be  made  of  the  democratizing 
influence  of  the  reform  and  the  greatest  possible  good 
developed  from  the  movement. 

To  all  who  have  cooperated  in  the  making  of  the 
book  the  appreciative  thanks  of  the  Publication  Com- 
mittee of  the  National  Municipal  League  (William  B. 
Rowland,  Chairman,  New  York;  John  Ihlder,  New 
York;  Clinton  Rogers  Woodruff,  Philadelphia;  Prof. 
L.  S.  Rowe,  Philadelphia;  Richard  S.  Childs,  New 
York)  are  herewith  cordially  tendered. 


VI 


CONTENTS 


CHAPTER  PACK 

I. — Introductory.     By  the  Editor i 

II.— Nationalism  and  Popular  Rule.        By  Colonel 

Theodore  Roosevelt 52 

III. — The  Issues  of  Reform.     By  Governor  Woodrow 

Wilson 69 

^        IV. — The   Development   of   Direct   Legislation   in 
'**  America.     By  Robert  Treat  Paine     ...       92 

V. — The  Referendum  in  the   United   States.     By 

President  A.  Lawrence  Lowell      .        .        .        .126 

VI. — Direct  Legislation  as  an  Ally  of  Represent- 
l^ftCi  ATIVE     Government.       By     Professor     Lewis 

Jerome  Johnson i39 

VII.— Representative  as  Against  Direct  Legislation. 

By  Congressman  Samuel  W.  McCall         .        .     164 

VIII. — A  Defence  of  Direct  Legislation.     By  Senator 

Jonathan  Bourne,  Jr 194 

yfsl  IX.— The  Practical  Workings  of  the  Initiative  and 

Referendum  in  Oregon.     By  Joseph  N.  Teal     217 

X, — A  Year  of  the  People's  Rule  in  Oregon.    By 

Professor  George  U.  Ilaynes         ....     233 

vii 


CONTENTS 

CHAPTER  PAGE 

XI. — The  Unfavorable  Results  of  Direct  Legisla- 
tion IN  Oregon.     By  Frederick   V.  Holman.     279 

XII. — The  Use  of  the  Recall  in  the  United  States. 

By  Herbert  S.  Swan      .        .        .       .        .        .     298 

XIII. — The  Recall  as  a  Measure  of  Popular  Control. 
>^  By  Thomas  A.  Davis 313 

\o<\    XIV. — The  Recall  in  Los  Angeles.    By  Charles  Dwight 

Willard 321 

XV. — The  Recall  in  Seattle.    By  Fred  Wayne  Catlett  .  326 

XVI. — Sources  and  Literature 342 

Appendix 349 

Index 351 


TIU 


THE    INITIATIVE,   REFERENDUM 
AND    RECALL 

CHAPTER    I 

INTRODUCTORY 

There  has  been  no  more  striking  phenomenon  in 
the  development  of  American  political  institutions  dur- 
ing the  last  ten  years  than  the  rise  to  prominence  in 
public  discussion,  and  consequently  to  recognition  upon 
the  statute-book,  of  those  so-termed  newer  weapons  of 
democracy — the  initiative,  referendum  and  recall.  By 
the  initiative  is  meant  the  right  of  a  stated  percentage 
of  the  voters,  in  any  state  or  municipality,  to  propose 
both  constitutional  and  ordinary  laws,  and  to  require 
that,  if  these  be  not  enacted  forthwith  by  the  state  or 
municipal  legislature,  they  shall  be  submitted  for  rati- 
fication to  tlie  whole  body  of  voters.  By  the  referen- 
dum is  meant  the  right  of  a  stated  percentage  of  the 
voters  to  demand  that  measures  passed  by  the  ordinary 
lawmaking  bodies  of  the  state  or  municipality  shall 
be  submitted  to  the  whole  body  of  voters  for  accept- 
ance or  rejection.  By  the  recall  is  meant  the  right  of 
the  electors  in  any  state  or  municipality  to  end  by  an 
adverse  vote  the  term  of  any  elective  officer  before  the 

I 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

expiration  of  the  period  for  which  he  was  elected. 
However  opinions  may  differ  concerning  the  inherent 
merits  and  defects  of  these  agencies  of  popular  gov- 
ernment, or  concerning  their  compatibility  with  a 
sound  representative  system,  it  is  at  all  events  not  to 
be  denied  that  they  have  gained,  during  recent  years, 
a  remarkable  hold  upon  the  confidence  of  a  large 
and  apparently  growing  portion  of  the  American 
electorate. 

For  this  growth  in  popularity  a  twofold  reason 
may  be  assigned.  On  the  one  hand  it  is  a  logical  by- 
product of  a  declining  popular  trust  in  the  judgment 
and  integrity  of  elective  legislators.  The  calibre  of 
the  representative  body,  whether  in  state  or  city,  is 
not  what  it  used  to  be,  and  of  this  deterioration  public 
opinion  has  taken  due  cognizance.  ^^kOiatever__the 
reasons  therefor^and  they^re  probablytoo  complex  to 
warrant  easy  generalization,  the  symptoms  of  legisla- 
tive  degeneracy  have  grown  too  plain  to  be  disre- 
garded.  Resort  has  accordingly  been  had  to  the  m,oat 
super_ficial_o£  prudential  measures,  wjiighis  to  take 
away  from  the  wicked  and  slothful  servant  even_that. 
wKichlie  hath.  For  maladministration  in  a  democracj- 
the  electorate  never  regards  itself  to  blame ;  the  demos^ 
postulates  its  own  infallibility.  Hence  it  has  sought  to 
remedy  the  evils  which  seem  to  result  from  an  unsatis- 
factory  representative  personnel,  not  by  the  adoption  oS 
measures  designed  to  secure  an  improved  grade  of. 
officeholders,  but  by  reducing  the  final  powers  which 
the  officeholders  may  exercise^ In  other  words,  _the 

2 


INTRODUCTORY 

growth  in  popularity  of  direct  legisjat'""  pvinres  ^ 
public  disposition  to  revoke  the  trust  rather  than  to 
change  the  trustees,    r-f-"  t^  -  I  "^ 

In  the  second  place,  the  representatives  of  the  people 
have  themselves  shown  readiness  to  aid  the  movement. 
American  legislative  bodies  do  their  work  under  seri- 
ous handicaps  arising  from  the  lack  of  efficient 
leadership  and  from  the  division  of  power  and 
responsibility  which  is  inherent  in  the  system  under 
which  they  are  expected  to  perform  their  functions. 
Thoughtful  men,  alike  in  the  state  legislatures  and  in 
the  large  city  councils  of  most  American  cities,  have 
come  to  realize  that  efficient  legislation  requires  both 
leadership  and  the  centralization  of  responsibility; 
American  legislative  bodies  have  possessed  neither.  In 
the  absence  of  these  features,  sinister  influences  come 
into  full  play  upon  the  floors  of  legislative  chambers. 
Representatives  find  that  they  can  take  sides  on  many 
questions  of  policy  only  by  placing  themselves  in  such 
position  that  they  are  bound  to  antagonize  some  power- 
ful organized  interest,  no  matter  which  side  they  may 
take,  so  that  to  turn  the  whole  matter  over  to  the  issue 
of  a  popular  referendum  constitutes  for  them  the  line 
of  least  resistance.  The  referendum  in  particular  has 
thus  become  the  Torres  Vedras  of  the  legislator  whose 
first  care  is  for  his  own  political  future.  The  practice 
of  passing  bills  to  enactment  "with  the  referendum 
attached,"  has  become  common  in  many  states  during 
recent  years,  and  measures  for  which  the  legislature 
is  not  ready  to  take  full  responsibility  are  being  more 

3 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

and  more  readily  turned  over  to  the  electorate  for 
acceptance  or  rejection.  At  first  an  exceptional  pro- 
cedure, this  practice  has  shown  a  tendency  to  seek  rec- 
ognition as  a  normal  method  of  lawmaking;  the  legis- 
latures have  taught  the  voters  to  expect  that  they 
shall  be  freely  called  upon,  not  only  to  select  representa- 
tives, but  to  give  a  direct  decision  upon  issues  of  policy. 
Hence  appear  the  two  outstanding  reasons  for  the 
recent  development  of  direct  legislation  in  Ameri- 
can state  and  municipal  government.  A  declining 
public  confidence  in  the  efficiency  and  integrity  of  legis- 
lators, and  a  readiness  on  the  part  of  representatives 
to  place  upon  the  shoulders  of  the  voters  a  responsi- 
bility which  ought  properly  to  remain  upon  their  own; 
these  two  tendencies  have  combined  to  give  direct 
legislation  its  growing  vogue. 

Notwithstanding  a  current  impression  to  the  con- 
trary, direct  legislation  is  not  new  either  in  principle 
or  in  practice.  The  initiative  and  the  referendum  are 
new  names  for  very  old  institutions.  All  ancient 
democracy  was  direct  democracy;  and  so  far  as  there 
was  legislation  in  early  democracies,  it  was  direct  legis- 
lation. The  government  of  the  primitive  Saxons,  if  it 
may  be  called  a  government,  was  vested  in  the  hands 
of  a  popular  assembly,  composed  of  all  the  adult  tribes- 
men, and  this  assembly  exercised  directly,  without  the 
interposition  of  any  representative  body,  the  whole 
civil  and  military  authority.  In  Switzerland,  where 
alone  among  the  lands  of  Europe  the  great  centripetal 
influence  of  monarchical  absolution  did  not  make  itself 


INTRODUCTORY 

strongly  felt  through  the  Middle  Ages,  systems  of 
direct  popular  government  came  early  into  existence 
and  remained  until  modern  times.  Even  in  America 
the  initiative  and  the  referendum  are  among  the  oldest 
of  native  institutions :  they  may  properly  be  called 
indigenous,  for  these  agencies  of  popular  government 
were  not  borrowed  by  the  American  people  from  any- 
where outside  their  own  land.  They  were  brought  into 
being  upon  this  side  of  the  Atlantic  to  meet  the  special 
problems  which  a  new  government  had  to  face.  Mas- 
sachusetts submitted  her  first  constitution  to  a  popular 
referendum  in  1778,  and  again,  this  time  with  a  favor- 
able response,  in  the  following  year.  As  a  means  of 
ascertaining  the  will  of  the  voters  upon  constitutional 
questions,  the  expedient  quickly  found  favor  in  other 
states,  and  the  use  of  the  referendum  as  the  ordinary 
method  of  enacting  organic  laws  in  time  became  gen- 
eral.^ The  initiative,  likewise,  obtained  recognition  in 
principle,  at  any  rate,  when  the  first  constitution  of 
Georgia  in  1777  gave  to  the  people  the  exclusive  right 
of  proposing  changes  in  that  document.  Other  eight- 
eenth-century constitutions,  notably  those  of  Massa- 
chusetts, Pennsylvania  and  New  Hampshire,  reserved 
to  the  people,  not  the  right  to  initiate  legislation,  but 
what  amounted  to  at  least  a  permissive  initiative — the 


'  Not  yet  entirely  so,  however,  for  during  the  last  twenty  years 
four  state  constitutions  have  gone  into  force  without  pojiular  approv- 
al namely,  those  of  South  Carolina  (1895),  Delaware  (1897J,  Louisiana 
(1898;  and  Virginia  (1902). 

5 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

right  "  to  give  instructions  to  their  representatives  "  in 
the  legislature. 

The  use  of  the  referendum  in  the  process  of  ordi- 
nary, as  distinguished  from  constitutional  lawmaking, 
began  in  America  a  half-century  later.  The  legislature 
of  Maryland,  in  1825,  referred  to  the  people  of  that 
state  the  question  of  establishing  free  primary  schools, 
and  stipulated  that  the  law  should  go  into  effect  only  in 
such  counties  as  might  pronounce  in  the  affirmative. 
Other  state  legislatures  followed  the  same  procedure 
in  cases  where  the  issue  did  not  seem  to  be  readily 
determinable  otherwise,  and  in  due  course  provisions 
began  to  be  inserted  in  state  constitutions  requiring 
that  all  ordinary  laws  affecting  certain  matters  should 
be  submitted,  before  final  enactment,  to  the  people  of 
the  entire  state  or  the  voters  of  the  counties  or  munici- 
palities affected.  Typical  examples  of  matters  upon 
which  some  constitutions  have  made  the  referendum  an 
essential  preliminary  to  enactment  are  changes  in  the 
suffrage  laws,  alterations  in  the  state  boundaries, 
changes  in  the  location  of  the  state  capital  or  of  the 
various  state  institutions,  measures  pledging  the  credit 
of  the  state  or  giving  state  aid  to  private  enterprises, 
and  modifications  in  the  laws  relating  to  state  taxa- 
tion. 

But  the  practice  of  referring  matters  to  a  popular 
referendum  has  made  its  most  steady  progress  in  the 
realm  of  local  government.  The  wide  variety  of 
interests  which  often  appeared  to  be  affected  by  general 
legislative  measures   relating  to  local   administration, 

6 


INTRODUCTORY 

and  the  seeming  impossibility  of  providing  state-wide 
rules  which  would  serve  the  needs  and  desires  of  all 
the  municipalities,  large  and  small,  soon  led  the  state 
legislatures  to  the  practice  of  entrusting  such  matters 
to  the  decision  of  the  localities  themselves.  The  regu- 
lation or  prohibition  of  the  traffic  of  intoxicants  was 
perhaps  the  most  prominent  of  the  matters  within  this 
category,  and  it  is  a  question  upon  which  there  have 
been  more  popular  referenda  in  American  municipali- 
ties than  can  easily  be  counted.  Indeed  it  has  come  to 
pass  that,  in  some  states  of  the  Union,  the  cities  and 
towns  look  upon  the  privilege  of  deciding  this  question 
at  an  annual  referendum  as  a  sort  of  inalienable  right 
of  the  community.  So,  likewise,  such  matters  as  the 
adoption  of  a  new  city  charter,  or  the  adoption  of 
amendments  to  an  existing  charter,  the  alteration  of 
municipal  boundaries,  the  issue  of  municipal  bonds, 
and  the  granting  of  long-term  franchises  to  public 
service  corporations,  are  all  matters  upon  which  the 
voters  of  cities  and  towns  have  frequently  been  called 
upon  to  pass  judgment  at  the  polls.  Sometimes  the 
constitution  of  the  state  requires  submission  of  such 
matters ;  at  other  times  the  requirement  is  statutory 
only ;  and  in  still  other  instances  the  referendum  is 
ordered  by  the  authorities  of  the  municipality  itself. 
To  the  practice  of  submitting  matters  to  the  voters  of 
a  municipality,  or  to  any  portion  of  the  whole  body  of 
state  voters,  there  is  no  serious  constitutional  objection. 
But  the  state-wide  referendum,  that  is  to  say,  the  sub- 
mission by  the  legislature  of  a  measure  to  the  voters 

7 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

of  tlie  entire  state  for  final  adoption  or  rejection  by 
them,  meets  the  objection  that  snch  reference  consti- 
tutes a  delegation  of  legislative  power.  And  in  the 
absence  of  specific  constitutional  permission,  such  dele- 
gation has  usually  been  held  by  the  courts  to  be  ultra 
vires  of  the  legislature.  It  has  been  urged  also  that 
states  which  adopt  the  mandatory  initiative  and  refer- 
endum thereby  contravene  that  provision  of  the  United 
States  constitution  which  guarantees  to  every  state  in 
the  Union  "  a  republican  form  of  government."  But 
this  idea  has  not  as  yet  found  support  in  any  judicial 
decision. 

While  the  two  agencies  of  direct  legislation — the 
initiative  and  the  referendum — are  logically  related  and 
supplement  each  other,  the  latter  can  exist  and  serve 
many  of  its  professed  ends  without  the  former.  And 
as  a  matter  of  fact  the  referendum  moved  along  during 
the  greater  part  of  the  nineteenth  century  under  its 
own  steam.  The  principle  of  the  initiative,  which  is 
that  a  stated  percentage  of  the  voters  of  a  state  or 
municipality  shall  have  the  right  to  propose  a  measure 
and  to  require  that  such  measure  be  submitted  to  the 
people  for  their  adoption,  was  given  recognition  at  a 
very  early  date  in  American  political  history.  But  its 
progress  for  a  full  century  was  slow,  much  slower  than 
that  of  the  referendum.  Where  it  did  appear  in  the 
constitution  or  the  laws,  it  was  rarely  brought  into 
operation  unless  it  happened  to  be  the  only  way  in 
which  legislation  relating  to  certain  matters  could  be 
brought  forward.     Not  infrequently  the  initiative  did 

8 


INTRODUCTORY 

provide  the  only  way.  When,  for  example,  a  state  con- 
stitution inhibited  the  legislature  from  enacting  any 
special  legislation  for  individual  cities,  how  could  the 
special  needs  of  a  particular  city  be  provided  for  ?  The 
natural  way  is,  of  course,  to  let  the  citizens  of  a  particu- 
lar municipality  set  forth  their  own  demands  by  a  peti- 
tion, which  is,  in  other  words,  to  exercise  the  initiative 
in  legislation.  Constitutional  provisions  which  forbid 
the  legislature  from  enacting  laws  of  this,  that,  or  the 
other  sort,  have  become  steadily  more  numerous  during 
the  last  quarter  of  a  century,  and  their  increase  in  num- 
ber has  given  a  powerful  impetus  to  the  spread  of  direct 
legislation.  South  Dakota  was  the  first  state  to  adopt 
the  initiative  and  referendum  as  normal  agencies 
wherewith  the  electors  of  the  state  might  directly  con- 
trol the  making  of  all  ordinary  laws,  for  an  amend- 
ment to  the  South  Dakota  constitution,  made  in  1898, 
permitted  the  initiative  to  be  exercised  and  the  referen- 
dum to  be  invoked  by  five  per  cent,  of  the  voters. 
Other  states  which  have  incorporated  similar  provisions 
in  their  constitutions  during  the  last  ten  years  are: 
Utah,  in  1900;  Oregon,  in  1902;  Nevada,  in  1904;^ 
Montana,  in  1906;  Oklahoma,  in  1907;  Maine,  in 
1908;  Missouri,  in  1909;  Arkansas  and  Colorado,  in 
1910;  Arizona  and  California,  in  191 1;  and  New 
Mexico  (referendum  only),  in  the  same  year. 

The  provisions  relating  to  direct  legislation  in  these 

'Nevada  in  1904  made  provision  for  the  referendum  only;  but  an 
amendment  providing  both  for  tlie  initiative  and  the  recall  is  now 
being  submitted  to  the  voters. 

2  9 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

various  states  are  alike  in  fundamentals,  but  differ  in 
many  important  details.  In  all  of  them  the  referendum 
is  obligatory  as  a  method  of  adopting  constitutional 
amendments,  but  in  two  of  them.  Montana  and  Maine, 
constitutional  amendments  are  excluded  from  the  scope 
of  the  initiative  L  that  is  to  say,  the  voters  of  these  two 
states  are  allowed  to  pass  upon  all  proposed  changes  in 
the  organic  laws,  but  are  not  permitted  to  do  the  pro- 
posing. In  the  matter  of  ordinary  laws,  moreover, 
there  are  various  limitations  upon  the  scope  of  direct 
legislation.  A  common  proviso  is  that  which  excludes 
from  the  operations  of  the  initiative  and  referendum 
all  rneasures  which  carry  a22ropriations_for  the  curreat 
expenses  of  state  government,  or  for  the  maintenance 
of  state  institutions.  THe"^onstitutjons  of  Maine.  MTs- 
souri,  Montana  and  South  Dakota  contain  this  re^rjc- 
tion^  Another  Imiitation,  which  exists  in  practically 
all  the  states  which  have  adopted  the  initiative  and 
referendum,  is  that  which  £X£inpts_from  their_S£D4ie 
all  emergency  measiires,,  that  is,  laws  which  seem 
urgently  necessary  in  the  interest  of  the  public  peace 
or  for  the  preservation  of  the  public  health.  As  a  pre- 
caution against  the  abuse  of  this  right  of  the  legisla- 
ture to  act  freely  and  finally  in  emergencies,  it  is 
usually  provided  that  measures  passed  under  this  pro- 
viso must  have  obtained  a  two-thirds  majority  in  each 
branch  of  the  legislature.  But  lest  this  safeguard 
should  not  prove  adequate,  the  constitutional  provisions 
in  some  cases  go  further  and  expressly  declare  that 
certain  classes  of  measures  may  not  in  any  case  be 

10 


INTRODUCTORY 

deemed  emergency  laws.  Among  measures  so  enumer- 
ated, are  statutes  granting  franchises  for  a  longer  term 
than  a  single  year,  legislation  authorizing  the  purchase 
or  sale  of  lands,  and  laws  changing  the  charters  of 
municipalities  without  a  local  referendum. 

In  the  machinery  of  direct  legislation  there  are  also 
some  marked  variations.  The  percentage  of  votei:^ 
required  for  putting  Jhe  initiative  into  operation-^is 
eipjit  per  cent^  in  some  states  aiid^&v£_4ier  cent,  iq^ 
others.^  Oklahoma  requires  fifteen  per  cent,  in  the 
case  of  constitutional  amendments,  but  only  eight  per 
cent,  in  the  case  of  ordinary  statutes.  Generally  speak- 
ing, the  same  quota  of  voters  may  demand  a  referen- 
dum upon  any  measure  passed  by  the  legislature.  Lil^e- 
wise  the  procedure_ili£EerS--frQiii  -S,tate__to_state  in  sucli^ 
matters  as  the  basis  upon  which_this  percentage  is 
calculated,  the  methods  of  verifying  sigiialiimS-JjUjetj- 
tions.  the  time  and  place  of  filing  petitions,  and  the 
arrangements  for  giving  due  publicity  to  jiieasures 
proposeil.  In  the  last-named  matter,  most  of  the  states 
which  have  adopted  the  system  of  direct  legislation 
arrange  for  printing  and  distributing,  at  the  public  ex- 
pense, full  texts  of  all  measures  which  go  before  the 
people.  Some  of  them  have  the  additional  provision 
that  arguments  pro  and  con  shall,  under  suitable  limi- 
tations, be  published  and  sent  broadcast  at  the  cost  of 
the  state  exchequer.  In  South  Dakota  referenda  may 
take  place  only  at  a  regular  election,  but  in  the  other 

>  In  Maine  the  requirement  is  not  a  percentage  but  12,000  voters. 

II 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

states  special  elections  may  be  ordered.  Ordinarily 
a  measure  may  be  re-submitted  as  often  as  the  required 
number  of  petitioners  can  be  found  to  demand  it ;  the 
Oklahoma  constitution  is  the  only  one  which  affords 
any  adecjuate  safeguard  against  abuses  arising  from 
the  frequent  re-submission  of  defeated  proposals.  A 
measure  rejected  by  the  voters  of  that  state  may  not 
be  again  referred  to  them  within  three  years,  save  on 
petition  of  twenty-five  per  cent,  of  the  voters — a  prac- 
tical impossibility. 

The  state  of  Illinois  has  adopted  a  system  which  is 
intended  to  secure  the  advantages  of  direct  legislation 
while  preserving  the  actual  lawmaking  functions  of 
the  legislature.  Measures  may  be  initiated  by  popular 
petition,  and  when  so  originated,  go  to  the  voters  at 
the  polls.  But  acceptance  at  the  polls  does  not,  as  in 
the  other  states,  enact  the  measures  into  law.  The 
action  of  the  voters  is  merely  advisory  in  effect,  and 
operates  as  an  instruction  to  the  legislature,  which 
alone  retains  the  power  of  actual  enactment.  The 
laws  of  Texas,  again,  provide  for  initiative  and  refer- 
endum as  agencies  for  framing  party  policy.  A  speci- 
fied number  of  voters  (ten  per  cent.)  in  any  political 
party  may  propose  planks  for  the  party  platform  and 
may  secure  a  party  vote  thereon.  The  opinion  of  the 
party  adherents,  as  thus  expressed,  becomes  an  instruc- 
tion to  all  party  conventions,  committees  and  officials. 

But,  as  has  been  already  stated,  the  greatest  develop- 
ment of  direct  legislation  has  taken  place  in  the  field 
of  municipal  government.     Here  it  has  gone  hand  in 

12 


INTRODUCTORY 

hand  with  the  movement  for  simplifying  municipal 
machinery  and  for  ousting  party  organizations  from 
that  dominating  place  in  city  government  which  they 
have  long  maintained.  The  spread  of  the  commission 
tvpe  of  municipal  administration  has  given  the  initia- 
tive and  referendum  much  of  their  present-day  vogue 
in  new  city  charters.  To  be  more  accurate,  one  should 
say  that  each  movement  has  supplemented  and  helped 
the  other.  A  system  of  city  government  by  a  single 
commission  of  five  men  would  doubtless  have  appeared 
to  possess  great  possibilities  of  danger  and  would 
hardly  have  reached  its  present  degree  of  popular- 
itv  had  not  the  sponsors  of  the  plan  put  forward 
schemes  of  direct  legislation  as  a  means  of  replacing 
the  old  checks  and  balances  which  the  adoption  of  the 
commission  system  eliminates.  It  is  true  that  the  cities 
which  first  adopted  the  commission  plan,  Galveston, 
Houston  and  other  Texan  municipalities,  did  not  give 
the  initiative,  the  referendum,  or  even  the  recall  a 
place  in  their  new  charters.  They  placed  their  full 
faith  and  credit  in  the  representative  type  of  local 
democracy.  That  is  one  reason  why  northern  cities 
first  looked  askance  at  the  Texas  experiment.  The 
Des  Moines  plan,  which  is  the  Texas  system  plus  pro- 
visions for  direct  legislation  and  non-partisan  nomina- 
tions, appealed  more  readily  to  public  confidence. 
Government  by  commission  has  secured  adoption  in 
over  two  hundred  American  cities.  Of  this  number 
the  great  majority  (that  is  to  say,  in  nearly  all  except 
some  of  the  cities  of  Texas)  have  incorporated  in  their 

13 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

new  commission  charters  some  sort  of  provision  for 
the  initiative  or  referendum. 

As  in  the  state  constitutions,  the  city  charter  pro- 
visions relating  to  direct  legislation  are  alike  in  prin- 
ciple and  varying  as  to  details.  Speaking  broadly,  the 
voters  of  the  city  have  the  right,  by  presenting  peti- 
tions bearing  a  prescribed  number  of  signatures,  to 
propose  any  municipal  ordinance  or  other  local  meas- 
ure. The  percentage  of  signatures  recjuired  is,  of 
course,  higher  than  that  demanded  in  state  affairs :  it 
ranges  from  fifteen  to  twenty-five  per  cent.^  Such 
proposals  go  before  the  whole  city  electorate  at  the 
next  regular  polling,  provided  the  date  of  such  polling 
be  not  more  than  a  few^  months  away;  otherwise 
special  elections  may  be  held.  Similarly  the  charters 
usually  provide  that  no  ordinance  or  order  of  the 
municipal  council  (or  commission)  shall  go  into  force 
for  a  certain  number  of  days,  during  which  interval 
petitions  asking  that  the  ordinance  be  referred  to  the 
voters  may  be  presented.  If  such  petitions  bear  the 
required  number  of  signatures,  the  ordinance  can  go 
into  effect  only  on  acceptance  at  the  polls ;  if  valid  peti- 
tions be  not  presented  within  the  interval,  the  ordinance 
goes  into  effect. 

Both  in  state  and  city  governments  the  machinery 
of  direct  legislation  has  been  frecpiently  set  in  motion 
during  the  last  half-dozen  years.     In  Oregon  the  sys- 

lA  table  showing  the  exact  percentages  in  all  commission-gov- 
erned cities  may  be  found  in  E.  S.  Bradford's  "Commission  Govern- 
ment in  American  Cities"  (New  York,  1911),  223-233. 

14 


INTRODUCTORY 

tern  has  been  put  to  an  extensive  and  increasing  use 
at  every  state  election  since  its  incorporation  in  the 
constitution  ten  years  ago.  At  the  election  of  1 910  no 
fewer  than  thirty-two  projects  of  legislation  were  sub- 
mitted to  the  voters  of  the  state/  and  there  are  indi- 
cations that  the  ballots  of  1912  will  have  also  made 
free  use  of  the  system  or  quite  enough,  at  any  rate,  to 
demonstrate  that  where  provisions  for  direct  legisla- 
tion go  on  the  statute-book  they  are  not  at  all  likely 
to  remain  inactive. 

No  question  of  present-day  political  discussion 
affords  grounds  for  wider,  yet  thoroughly  sincere,  dif- 
ferences of  opinion  than  the  relative  merits  and  de- 
fects of  direct  as  contrasted  with  representative 
legislation.  Men  differ  honestly,  not  only  as  to 
the  soundness  of  the  principles  upon  which  the  initia- 
tive and  referendum  are  based,  but  also  as  to  the 
immediate  and  ultimate  effects  of  their  actual  use. 
One  reason  for  this  can  be  found,  perhaps,  in  the  fact 
that  the  propaganda  for  direct  legislation  embodies  not 
only  a  policy  but  a  protest,  and  upon  the  necessity 
for  any  protest  of  such  violence  against  the  existing 
system  there  is  an  added  opportunity  for  divergence 
in  opinion.  Proposals  for  the  establishment  of  the 
mandatory  initiative  and  referendum  have  derived 
much  of  their  impetus  and  support,  not  from  a  popu- 
lar conviction  that  they  promise  a  wholly  satisfactory 

*  These  are  printed  in  C.  A.  Beard  and  B.  E.  Schultz's  "Docu- 
ments on  the  Initiative,  Referendum  and  Recall"  (New  York,  1912), 
385-389. 

'5 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

method  of  lawmaking,  but  from  a  widespread  impres- 
sion that  only  through  these  agencies  can  some  present- 
day  legislative  abuses  be  eradicated.  American  public 
opinion  has  grown  more  vigorous,  more  active,  and 
more  intelligent  during  the  last  decade.  At  no  time 
in  our  history,  indeed,  has  it  been  more  adequately 
informed  upon  great  political,  economic  and  social 
questions,  for  in  no  previous  period  have  the  agencies 
of  popular  information  been  so  ample.  Being  in- 
formed, public  opinion  has  become  eager  to  assert 
itself  in  legislative  policy,  and  it  would  doubtless  be 
content  to  do  this  through  the  orthodox  channels  of 
representative  government  if  this  seemed  wholly  feas- 
ible. But  a  large  section  of  the  electorate  has  come 
to  the  conclusion  that  these  channels  do  not  afford 
adequate  facilities  for  the  assertion  of  popular 
sovereignty.  Nor  is  this  conviction  confined  to  any 
loose-thinking  element  among  the  voters.  When  one 
of  the  most  observant  among  contemporary  stu- 
dents of  American  political  currents  can  express  the 
conclusion  that  "  public  opinion  was  never  more  help- 
less to  obtain  its  purposes  by  ordinary  and  stated 
means,"  ^  it  can  scarcely  be  urged  that  the  old  ma- 
chinery of  democracy  is  fulfilling  its  professed  ends  to 
the  satisfaction  of  all. 

^.Popular   distrust  of   the   present   system   of_|aw- 
^aking  is  undeniably  widespread  and_deep^    But  Jtjs, 
not  based  upon  the  idea  that  the  represenjatives  of 

1  See  below  p.  74. 
16 


INTRODUCTORY 

the  people  are  inconipetent_to_do_thek_diity. Rather 

jt_arises  from  the  iiotion  that-tlie^^-are-^preveiited  from 
doing-  it.  ^\nd  these  preventing  influences^  in  the  popu- 
lar   mind,    are    various    organized    interests — pohtical 

—   ■ — I       — — • — — — ■ 

machines  and  economic  corporations — whose  wishes 
do  not  usuahy  run  parahel  toThose  of  the  electorate. 
Xo  be  logical~the  pr"otest  j)ug:ht  lo  be  directed  against 
the  practice  oj  sending  to  the  legislature  and  to  the 
niunicipal_councils  men  of  insui£cient  integrity  who 
allow  themselves  to  be  controlled  by^^sinisjer  influences. 
But  public  opinion  is  not  inclined  to  be  logiail_m  ihe 
protests  which  it  makes.  Whatever  the  flaws  of  repre- 
sentative democracy,  the  people  are  loth  to  put  the 
J^lame  therefor  upon  their  ow_n_shoulders^  Xhe_Yiil£ls 
will  change  the  system,  but  not  their  own  wa^s. 

Grounds   for   popular  protest  against   the  control 
of  representative  bodies  by  self-seeking  interests  there 
are,  of  course,  in  plenty.     Conditions  that  have  long 
existed  and  still  exist  in  at  least  a  dozen  states  and  in 
scores   of  municipalities   afford   abundant    proof  that 
whether  or  not  the  voters  get  what  is  advisable  for 
them  to  have  in  the  matter  of  legislation,  they  certainly 
do  not  always  get  what  the  majority  of  them  want. 
And  under  the  representative  system,  as  it  has  been 
administered  in  most  parts  of  the  country,  it  would  be 
strange  to  find  things  otherwise,   .^hen   representa- 
tives  are  nominated  inj2arty  conyeiitipns  dominatcil  by. 
jKjHtical  bosses  and  elected  by  a  ballot  which  embodies_ 
every  feature  that  ingenuity  could  devise  for  befog:_ 
ging  the  voter ;  when  these  representatives  are^et_tQ_ 

17 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

perform  their  functions  of  legislation  under^ji^^svs- 
tem  which  eliminates  all  possibility  of  fimL  leacler- 
ship  and  presents  every  facility  for  shifting  responsi- 
J^ilities,  it  is  idle  to  expect  that  the  staiute::book  will 
be  a  mirror  of  public  opinion,. 

Somewhat  curiously,  however,  it  is  only  within 
very  recent  years  that  any  serious  attempts  have  been 
made  to  clear  the  representative  system  of  these  im- 
pediments to  its  proper  working  by  the  introduction 
of  such  features  as  direct  nominations,  the  short  bal- 
lot, and  improved  methods  of  procedure  in  legislative 
bodies.  For  a  long  time  remedial  measures  took  lines 
which_ were  noi,  and  could  not  be  productive  of  marked 
improvement.  Popular  distrust_of  representatives 
manifested  itself  first  of  all,  for  example,  in  the  prac^ 
tice  of  curbing  legislative  freedoni.  Whenever  state 
constitutions  were  revised,  new  limitations  upon  legis- 
lative discretion  were  inserted  until  one  could  almost 
say  that  in  some  states  the  constitutional  convention 
(with  its  work  subject  to  popular  ratification)  has  be- 
come the  medium  of  all  fundamental  legislation,  while 
the  state  legislature  is  relegated  to  the  function  of  pro- 
viding for  odds  and  ends  during  the  years  intervening 
between  periodical  revisions  of  the  constitution.^ 
Whenever,  through  rise  of  new  conditions,  a  state 
legislature  develops  a  new  field  of  discretionary  action, 
the  next  constitutional  convention  is  quite  apt  to  put 
a  hamper  upon  such  legislative  freedom  by  defining 

>  J.  Q.  Dealey,  "General  Tendencies  in  State  Constitutions  "  in 
American  Political  Science  Review,  February,  1907,  pp.  20C>-2I2. 

i5 


INTRODUCTORY 

the  principles  upon  which  the  new  conditions  shall  be 
met.  Some  state  constitutions  prescribe  that  the  legis- 
lature shall  meet  only  in  alternate  years,  and  some 
place  a  limit  upon  the  number  of  days  it  may  continue 
in  session — constitutional  provisions  which  seem  to 
take  for  granted  that  the  activity  of  legislatures  is  a 
somewhat  necessary  evil  that  ought  not  to  be  borne 
beyond  a  certain  point.  None  of  these  measures  is  in 
the  direction  of  improving  the  calibre  of  legislators — 
none  of  them  aims  to  facilitate  the  work  of  legisla- 
tures. All  of  them  are  based  upon  the  strange  notion 
that  the  work  of  a  representative  body  can  be  improved 
by  curtailing  its  freedom,  and,  pari  passu,  its  responsi- 
bility. The  most  effective  way  to  degrade  any  official 
chamber  and  to  make  service  in  it  unworthy  of  sub- 
stantial men  in  the  community  is  to  take  away  its 
capacity  for  becoming  a  public  nuisance  if  it  chooses 
to  be  such.  A  body  which  can  do  no  harm  can,  by 
the  same  token,  do  little  good,  and  public  opinion  will 
not  be  long  in  discovering  the  fact.  Constitutional 
hampers  upon  legislative  discretion  have  availed,  for 
the  most  part,  only  to  lower  the  calibre  of  men  elected 
to  lawmaking  bodies. 

Following  abortive  attempts  to  secure  any  marked 
improvement  in  the  quality  of  legislation  by  reducing 
legislatures  to  the  plane  of  ordinance-making  bodies 
and  by  giving  the  real  legislative  power  to  periodic 
constitutional  conventions,  there  have  been  efforts, 
rather  half-hearted,  however,  to  improve  the  methods 
under  which  representatives  are  selected.     The  direct 

19 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

primary  laws  adopted  in  a  dozen  or  more  of  the  states 
and  applied  to  scores  of  cities  during  the  last  few 
years,  the  removal  of  party  designations  from  the  bal- 
lot, preferential  voting,  corrupt  practices  laws,  the  re- 
duction of  the  municipal  council  in  size  and  the 
increase  of  its  powers — all  these  are  measures  which 
aim  directly  at  securing  better  representatives,  and 
which,  if  given  adequate  opportunity,  will  almost  cer- 
tainly accomplish  much  in  that  direction.  The  recent 
experience  of  states  and  municipalities  seems  to  war- 
rant the  hope  that  most  of  the  existing  political  ail- 
ments  can  be  eradicated,  by  specific  remedies  directed_ 
strajght  against  the  local  seat  of  trouble.  _  But  this 
process  takes  time  and  requirej^  a  patience  whkh  pubHc 
opinion  does  not  seem  ready  to  exercise.  The  direct 
legislation  propaganda  is  an  evidence  of  popular  impa- 
tience with  the  slow,  but  reasonably  sure  working  of 
specific  reforms. 

The  first  argument  in  favor  of  direct  legislation 

OJ  rests,  accordingly,  uponthe  allegation  that  existing 
legislative  methods  and  results  are  unsatisfactory_to 
the  ma j ority  of_thejelectorate ;  that  representatives  do 
not  properly  represent,!  and  that  the  reforms  under- 
taken hitherto  have  not  changed  and  are  not  likely  to 
change  that  situation.  But  the  sponsors  of  the  initia- 
tive and  referendum  do  not  rest  their  whole  case,  or 
even  a  large  part  of  it.  upon  this  point.  They  claim _ 
for  their  proposals  many  positive  merits  which  do  not 

i^    connect  themselves  directly  with  the  faults  of  the  exists 
ing  representative  system.     Emphasis  is  laid,  for  ex- 

20 


INTRODUCTORY 

ample,  2212211  ^^^^  educative  value  of  direct  leoislation.  C^ 
By  means  of  the  initiative,  a  spirit  of  legislative 
enterprise  is  promoted  among  the  voters;  men  are 
encouraged  to  formulate  political  ideas  of  their  own 
and  to  press  these  upon  public  attention  with  the  assur- 
ance that  they  shall  have  a  fair  hearing.  If  public 
welfare  often  suffers  from  public  apathy;  if  the  mass 
of  the  voters  manifest  little  interest  in  the  contents 
of  the  statute-book,  this  is  due  in  large  measure,  it  is 
claimed,  to  the  feeling  of  electoral  helplessness  which 
in  some  states  amounts  to  a  popular  conviction.  In 
California,  during  the  decade  preceding  the  adoption 
of  the  direct  legislation  amendments  to  the  constitu- 
tion, it  would  be  a  gross  perversion  of  obvious  facts  to 
allege  that  the  voters  of  the  state  got  what  they  wanted 
in  the  way  of  legislation.  They  obtained,  for  the  most 
part,  what  a  great  and  influential  railroad  corporation 
was  willing  that  they  should  have.  In  a  state  like 
Pennsylvania,  or  in  a  city  like  Chicago,  at  the  present 
moment  it  would  be  idle  to  argue  that  the  statute- 
book  represents  the  embodiment  of  popular  ideas  in 
legislation.  The  voters  of  that  state  and  that  city 
have  endeavored  on  many  occasions  to  crystallize  their 
wishes  into  legislative  action ;  they  have  demonstrated 
that  on  many  matters  public  sentiment  is  pronounced 
and  readily  ascertainable  by  legislators;  yet  they  have 
almost  invariably  found  legislation  unresponsive.  To 
be  reall)-  representative,  a  government  must  be  re- 
sponsive to  jniblic  opinion,  and  to  be  responsive,  it 
must  ha\e  the  machinery  nf  close  contact.     Between 

21 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

even  a  strong  popular  sentiment  and  the  passage  of  a 
measure  to  enactment,  there  is,  under  what  is  termed 
representative  government  in  many  states  and  cities 
of  the  Union,  a  long  and  difficult  route,  well  strewn 
with  pitfalls.  The  growth  in  vigor  of  popular  ideas 
upon  matters  of  state  or  civic  policy  is  stunted  by  the 
mere  knowledge  that  this  is  so.  Men  develop  ideas 
only  when  there  is  at  least  a  fighting  chance  that  these 
ideas  may  be  borne  to  fruition,  and  the  electorate  is 
no  more  than  the  individual  writ  large.  Political 
thought  and  discussion  can  be  best  stimulated,  it  is 
suggested,  by  popular  knowledge  that  these  lead 
straight  to  action.  The  way  to  get  voters  interested 
in  measures  is  to  ask  for  their  opinion  upon  measures, 
not  for  their  opinion  upon  men.  The  way  to  educate 
the  voter  upon  matters  of  public  policy  is  to  submit 
measures  to  him  in  person  and  not  to  some  one  who 
holds  his  proxy.  The  educative  value  of  the  ordinary 
ballot  has  long  since  been  demonstrated ;  and  the 
friends  of  direct  legislation  now  urge  that  this  be  en- 
hanced by  making  the  ballot  a  more  elaborate  political 
catechism.  John  Stuart  Mill  once  remarked  that  the 
*'  magic  of  property  turns  sand  into  gold."  I^may  ht 
that  the  magic  of  responsibility  can  turn  popular  list- 
lessness  into  public  enthusiasm.  At  any  rate  the  system 
of  direct  legislation  freely  promises,  through  its  advo- 
cates, to  make  the  voter  realize  that  he  is  a  sovereign 
in  fact  as  well  as  in  name  and  to  increase  his  serious 
interest  in  public  affairs  by  giving  him  something 
more  to  decide  than  the  party  label  of  officeholders. 

22 


INTRODUCTORY 

In  keeping  with  this  emphasis  upon  the  educative 
value  of  the  initiative  and  referendum  is  the  provision 
made  by  jnost  of  the  states  and  municipahties  which  1 
have  adopted  these  features,  for  distrjbntion,  eithgjiiix 
wholejjr  jjUjart,^-  pub]Jr£-XJ)Pnsp^  of  printed  infor-irm-^^>^ 
tion  bearing  upon  the  different  questions  whirli  go 
uj)on_the_ballat.  These  pamphlets,  wdiich  are  usually 
in  the  form  of  a  symposium  presenting  the  arguments 
advanced  by  the  proponents  and  opposers  of  each 
proposition  to  be  voted  upon,  are  mailed  to  every  citi- 
zen whose  name  is  on  the  voters'  list.  He  is  expected 
to  read  his  pamphlet  before  he  goes  to  the  polls  and 
to  fcjrm  his  own  judgment  as  to  the  merits  of  each 
proposal.  In  addition  to  this,  it  has  become  customary 
for  various  organizations  to  show  their  interest  in 
some  of  the  items  by  holding  discussions  prior  to  an 
election,  passing  resolutions  of  adxice  to  their  own 
members,  and  even  issuing  literature  telling  the  voters 
which  cjuestions  upon  the  ballot  ought,  in  the  opinion 
of  these  organizations,  to  be  answered  in  the  affirma- 
tive and  which  in  the  negative.  Through  all  these 
various  channels  information  concerning  mooted  meas- 
ures is  literally  forced  upon  the  attention  of  voters.  It 
may  be  urged  that,  desi)ite  it  all,  a  great  many  voters 
will  remain  uninformed  and,  tlirough  their  lack  of  in- 
formation, will  register  unwise  decisions  at  the  polls. 
"S^t  it  will  scarcely  be  denied  that  the  mass  of  the  elec- 
torate is  apt  to  be  better  informed  upon  public  ques- 
tions when  all  this  literature  is  cast  amongst  it  than 
when  it  is  confronted  merelv  with  candidates  and  uiven 

23 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

only  such  printed  matter  as  bears  on  the  qualifications 
of  these  men.  There  ought  to  be  no  doubt  in  the  minds 
of  those  who  have  watched  the  workings  of  direct 
legislation  during  the  past  few  years,  that  this  sys- 
tem does  promote  popular  discussions  of  public  meas- 
ures. And  all  such  discussions  have  their  educative 
value.  Whether  they  actually  lodge  sure  information 
in  the  voter's  mind,  and  whether  he  accordingly  can 
hope  to  become  as  sane  and  judicious  an  agent  in 
passing  upon  these  measures  as  his  elected  representa- 
tive is  likely  to  be — that  is  a  matter  upon  which  one 
cannot  yet  speak  with  any  such  decision. 

In  the  realm  of  local  government  the  task  of  edu- 
cating the  voter  to  a  popular  knowledge  of  the  ques- 
tions laid  before  him  can  hardly  be  called  insuperable. 
The  basis,  indeed,  of  the  New  England  town  system 
of  government  is  the  principle  that  even  matters  of 
very  minor  importance  shall  be  decided  by  referenda 
to  the  citizens,  and  taking  the  history  of  New  England 
towns  as  a  whole,  it  does  not  appear  that  the  voters 
have  shown  themselves  less  capable  in  determining 
these  things  than  a  body  of  representatives  would  have 
been.  Most  of  those  towns  are  small,  it  is  true,  but 
others,  like  Brookline,  Mass.,  are,  in  point  of  popula- 
tion, larger  than  half  the  so-termed  "  cities  "  of  the 
United  States,  and  it  does  not  appear  that  town  gov- 
ernment in  any  way  loses  its  satisfactoriness  as  the 
towns  grow  in  population. 

Among  the  objections  urged  against  the  system  of 
direct  legislation  three  or  four  stand  out  most  promi- 

24 


INTRODUCTORY 

nently.  One  is  the  allegation  that  it  runs  contrary  to  <',y 
the  principle  of_  re2resentative_government ;  that  its 
adoption  will  deprive  representatives  of  power  and 
responsibility,  and  that  the  calibre  of  men  in  legislative 
office  will  deteriorate  in  consequence.  This  is  an  ob- 
jection w  Inch  cannot  be  lightly  brushed  aside,  _for_th^ 
i n St i t utional   history  of  this  country  duriiigi.-tlie.  last.. 


fifty  years  is  full  of  things  which  tend  to  afford  it 


jupport^_Indeed,  if  there  be  any  principle  which  j 
American  political  experience  seems  toestablish,  it  is^j 
the  one  stated  in  a  preceding  paragraph,  namdy, 
that  the  surest  way  to  imp^ir_the_personnel  of  any 
representative  body  is  to_reckice_its_powers.  The  ex-  ^ 
pansion  of  constitutional  limitations,  with  the  conse- 
quent narrowing  of  legislative  authority,  has  unques- 
tionably operated  to  reduce  the  dangers  arising  from 
the  election  of  incapable  legislators.  When  the  choice 
of  inferior  representatives  does  not  bring  serious  pen- 
alties upon  the  electorate,  inferior  representatives  are 
apt  to  be  chosen.  Public  vigilance  is  the  price  of  effi- 
cient government  only  so  long  as  the  legislature  holds 
broad  and  final  powers.  The  decline  in  the  calibre 
of  American  legislatures,  both  state  and  municipal,  has 
gone  hand  in  hand  with  the  shearing  of  their  legis- 
lative powers.  And  the  process  runs  in  a  vicious 
^ircle^  When  a  legislature  or  council  shows  itself  not 
up  to  the  mark  in  the  integrity  or  efficiency  of  its  work, 
the  usual  remedy  has  been  not  to  increase  but  to 
diminish  its  powers  and  responsibilities.  With  nar- 
rowed powers  it  attracts  a  less  capable  set  of  men 
3  25 


I 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

and  these  exercise  even  their  smaller   responsibilities 
less  satisfactorily.     So  again  the  pruning  knife  comes 
forth,  and  with  the  same  results.    This^j.n  a  word,  has 
^j,^,^^^^   been  the  Jiistorv_  of  city^  coundls_in_mojt_American. 
cities,   until   in   the   end_jthe  mrmicrpal  legislature   iji, 
cities  like  New  York  lias^eased  to  be  a  coordina^ 
brand]  ^f  municipal  go\^ernment,^nd  has  become  little 
more  than  the  arena  for  ^n  ill-tempered  and  almost 
I   wholly  uninfluential  discussion  of  pul^lic  affairs.     In 
!    many  cities  it  has  been  eliminated  altogether  by  tele- 
scoping it  with  the  executive. 

TlTe_j2olicy  of._dii:ect  legislation  proposes_a_more 
ruthless  shearing.  The  elaboration  of  constitutionaL 
and  charter  limitations  served  to  destroy  the  finality 
of  legislative  powers  in  many  matters :  direct  legisla- 
tion would  destroy  this  in  all  things  If  this  further 
mowing  down_of_Jh£-AiaL4)owe.rs  of  representalive 
bodies  would  not  conduce  to_a  further  decline  in  the 
calibre  of  their  personnel,  then  five  or  six  decades  of 
American  political  experience  have  taught  us  nothijig. 
The  sponsors  of  the  direct  legislation  propaganda 
assure  us  that,  under  the  new  legislative  regime,  public 
attention  will  be  focused  upon  measures  rather  than 
upon  men,  which  seems  to  carry  the  implication  that  an 
unalloyed  system  of  representative  legislation  pos- 
sesses the  vice  of  concentrating  too  much  public  atten- 
tion upon  the  claims  of  rival  candidates.  That,  how- 
ever, is  least  among  the  failings  of  representative 
democracy.  Its  shortcomings  arise  rather  from  a  fail- 
ure of  the  voters  to  exercise  adequate  care  in  ascer- 

26 


x/ 


INTRODUCTORY 

taining  the  qualifications  of  those  who  seek  office  and 
from  a  general  disposition  to  place  too  much  reliance 
upon  those  guarantees  which  a  party  label  is  supposed 
to  carry.  It  may  well  be  doubted  whether  an  electOT 
rate  which  cannot  be  brought jto  discriminate  with  care.  i^J 
as  among  candidates  can  be  easily  broiighL_tQ_exercise 
much  discrimiiiadon  as  amonjg^^measures.  The  voters 
like  to  associate  public  policies  with  personalities,  and 
anything  that  tends  to  weaken  the  prominence  of  the 
latter  is  not  unlikely  to  react  in  a  lessened  interest 
toward  the  former.  From  the  assertion  that  resgrtlfl 
direct  legislation  on  any  broad  scale  is  almost  certain. 
to  lower  the  plane  of  popular  representation  and 
consecpiently  to  result  in  a  poorer  quality  of  repre- 
sentative legislatioiT,_there  seems  to  he  nn  gpfting- 
away. .  Political  experience  supports  it  too  strongly 
to  leave  ground  for  much  hope  that  the  result  would 
be  otherwise. 

But  it  is  urged  that  the  direct  merits  of  the  new 
system,  in  the  way  of  positive  legislation,  far  out- 
weigh this  objection,  even  though  it  be  given  all  the 
emphasis  that  may  be  put  upon  it.  The  real  test  of 
legislation  in  a  democracy  is  its  popularity.  It  matters 
not  how  patiently  and  carefully  a  statute  may  be 
framed  l)y  legislators;  if  it  be  not  in  spirit  what  a 
majority  of  the  voters  desire,  it  is  not  a  good  statute 
when  judged  by  democratic  standards.  Now  the  chief 
deficiency  of  laws  and  ordinances  made  in  the  ortho- 
dox way  has  been,  it  is  alleged,  a  failure  to  recognize 
I-opular  demands.    And  this,  again,  has  come  about  in 

27 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

part  at  least,  because  the  men  who  have  been  elected  to 
state  legislatures  and  city  councils  have  too  frequently 
failed  to  realize  the  true  function  of  a  representative. 
If  representative  government  means  what  its  name 
implies,  the  real  and  indeed  the  only  function  of  a 
representative,  we  are  told,  is  to  represent.  In  defiance 
of  this  doctrine,  one  naturally  recalls  the  famous  apol- 
ogy of  Edmund  Burke  to  the  voters  of  his  constituency 
more  than  a  century  ago,  when  this  great  parliamen- 
tarian urged  that  the  true  function  of  a  representative 
is  to  do  his  constituents'  political  thinking  for  them.  He 
maintained  the  interests  of  his  people,  Burke  claimed, 
against  their  opinions.  As  a  principle  upon  which  to 
base  a  system  of  efficient  government,  there  is  much 
to  be  said  in  support  of  Burke's  doctrine,  but  if  every 
representative  were  to  act  on  the  maxim  that  his  own 
judgment  is  a  better  guide  of  public  interest  than  the 
plainly  expressed  opinions  of  those  whom  he  repre- 
sents, government  would  be  no  longer  representative 
or  popular.  That  laws  would  be,  under  the  influence 
of  such  conceptions  of  a  representative's  function,  more 
uniform  in  spirit,  more  consistent  with  one  another  and 
more  dispassionate  in  tone,  there  can  be  little  doubt. 
But  the  relation  of  law  to  public  opinion  would  be 
less  intimate,  and  any  marked  hiatus  between  these 
two  is  inconsistent  with  the  American  theory  of  demo- 
cratic government. 

It  has  been  urged,  again,  that  the  presumable  readi- 
ness of  voters  to  put  their  names  upon  initiative  peti- 
tions without  due  scrutiny  of  the  proposals  contained 

28 


INTRODUCTORY 

in  the  latter  will  force  upon  the_electorate  the  necessity  (31 
of_winnowing  a  few  j^rains  of  wheat  from  tlie_£haif 
which  wiljj3e_set  before  them  at  every  election.  And 
it  is  true  that  in  those  cities  which  have  already  adopted 
the  initiative  the  new  process  of  starting  measures 
upon  their  march  to  a  place  upon  the  municipal  stat- 
ute-book has  not  been  used  very  sparingly.  Every 
element  in  the  community  has  its  own  particular  legis- 
lative privilege  in  quest  and  is  apt  to  overestimate  the 
importance  of  such  claims  from  the  standpoint  of  the 
general  interest.  The  gathering  of  signatures  has  ac- 
cordingly the  momentum  of  an  interested  propaganda 
behind  it,  and  if  the  percentage  of  necessary  signa- 
tures be  not  set  fairly  high,  the  initiative  is  in  danger 
of  becoming  a  facile  agency  of  hobby-riding  at  the 
expense  and  inconvenience  of  the  public.  It  ought 
to  be  said,  however,  that  the  collection  of  any  large 
number  of  signatures,  under  the  restrictions  commonly 
imposed  by  the  direct  legislation  laws,  is  not  such  a 
simple  and  inexpensive  undertaking  as  many  imagine. 
If  the  proposal  directly  concerns  the  interests  of  any 
organized  element  of  the  community — the  labor 
unions,  the  great  business  corporations,  a  political  ma- 
chine, or  a  religious  body — the  required  signatures  for 
an  effective  petition  arc  not  ordinarily  difficult  to  se- 
cure. These  bodies  ha\e  the  machinery  for  name 
gathering  at  hand.  But  where  the  proposal  directly 
touches  the  privileges  and  jackets  of  none  of  these, 
but  merely  the  welfare  of  the  e\eryday  citizen  who 
has  no  particular  organization  to  champion  his  inter- 

29 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

ests,  the  quest  for  initiative  signatures  is  likely  to  make 
heavier  demands,  in  the  way  both  of  time  and  of 
money,  than  can  be  met  without  cooperation.  The 
promotion  of  laws  in  the  interest  of  the  unaffiliated 
citizen  is  likely  to  become  nobody's  business. 

An  interesting  sidelight  has  been  thrown  upon  this 
matter  by  the  working  of  those  provisions  relating  to 
nomination  by  petition  which  are  contained  in  the 
present  Boston  charter.  Candidates  for  election  to 
the  city  council  must  be  placed  in  nomination  by  peti- 
tions bearing  the  names  of  at  least  five  thousand  quali- 
fied voters — less  than  five  per  cent,  of  the  total  electo- 
rate. It  was  predicted,  when  the  adoption  of  this 
charter  provision  was  under  discussion,  that  the  re- 
quirement was  too  lenient  and  that  it  would  be  too 
easy  for  a  man  to  get  his  name  upon  the  ballot.  Sub- 
sequent events  have  proved  that  where  candidates  have 
the  support  of  a  political  machine  the  requirement  is 
easily  complied  with.  A  nomination  paper,  passed 
around  among  city  employees,  can  be  filled  in  a  day 
or  two.  Similarly  it  has  been  found  that  aspirants 
who  are  willing  to  hire  workers  can  secure  the  required 
names  at  five  or  ten  cents  per  head.  But  when  a  can- 
didate is  able  to  command  neither  the  backing  of  a 
political  organization  nor  the  funds  necessary  to  pay 
for  signatures,  the  prospect  set  before  him  is  sufficient 
to  deter  all  except  the  political  beachcomber  who  has 
nothing  else  to  do. 

It-i&_Lli:g£d_Jhat  the  initiative  wijl[  trans fer_to_th^ 
unorganized  and  independent  elements  of  the^elector- 

30 


INTRODUCTORY 

ate  the  advantages  now  held  ahnost  everywhere_by 
organized  Jnterests.  both  economic  and  political.  But  i*^) 
does  American  political_experience  warrant  fhe  hope 
yiat  it  will  do  anything  of  the  kindj.  It  is  true  that 
in  the  first  flush  of  their  newly-gained  prerogatives  the 
independent,  unorganized  electors,  in  some  states  and 
cities  where  direct  legislation  has  been  a  while  in 
vogue,  have  pounded  through  legislation  hostile  to  the 
special  interests.  But  these  spasms  of  popular  inde- 
pendence have  not  been  uncommon  under  the  repre- 
sentative system  of  lawmaking,  neither  have  they  been 
wholly  ineffective.  The  trouble  with  unorganized  ac- 
tion lies  in  the  fact  that  it  is  inevitably  spasmodic  and 
intermittent.  The  sponsors  of  the  mandatory  initia- 
tive have  asked  us  to  believe  that,  by  rendering  its 
course  of  action  more  direct,  an  unorganized  majority 
actuated  by  unselfish  motives  can  permanently  thwart 
the  will  of  a  well-organized  minority  of  the  electorate 
acting  with  all  the  zeal  and  resources  that  self-seeking 
aims  can  supply.  Ij_QUJUTiunicipa|  history  teaches  us 
anything,  Jt  is  that^  changes  in  the  framework  of  goy- 
ernment,  in  the  electoral  system^  and  in  the  methods 
of  ordinance-making  do  not  alone  suffice  to  block  the 
path way_of_  any  in£asuxe„>yhich  can  command  qrgan- 
ized  support  and  ample  funds. 

Objections  of  an  allied  sort  are  often  raised  against 
the  referendum  as  an  agency  of  lawmaking.  The 
political  history  of  Switzerland,  where  the  popular 
referendum  has  long  been  in  operation  under  circum- 
stances fa\-orablc  to  its  success,  shows  that  the  people 

31 


THE  INITIATIVE,   REFERENDUM    AND    RECALL 

in  general  grow  tired  of  their  legislative  duties  after 
the  novelty  of  their  experience  has  worn  off,  and  that 
a  decision  which  passes  for  the  will  of  a  majority  of 
the  voters  often  represents  in  reality  the  judgment  of 
that  minority  among  them  which  happens  to  be  im 
mediately  interested  in  the  question.     In  Berne,   for 
example,    a   majority   of   the   registered    voters   have 
recorded  themselves  on  only  nine  out  of  sixty-eight 
questions  submitted,  and  in  only  a  very  few  instances 
has  any  question  received  an  affirmative  vote  equal 
to  a  majority  of  the  registered  voters.     Even  in  the 
case  of  national  referenda  scarcely  more  than  one-half 
of  all  the  registered  electors  pass  upon  the  questions 
submitted  to  them  at  the  polls.    The  more  one  studies 
the  statistics  of  Swiss  referenda,  the  more  stronglyLis 
one  forced  to  the  conclusion  that_dmsions_which_a.re 
popular  in  name_are  jiot^jiecessa^ily  jiopulai^iiLi^ 
Jr'm^ln  Switzerland,  as  in  all  other  democracies,  the  laws 
*•  ^*n^  represent  the  will,  not  of  the  whole  electorate,  but  of 
'  ^^    that  part  of  it  which,  impelled  either  by  public  or  pri- 
vate motives,  takes  an  active  interest  in  affairs  of  state. 
jt^-In  one  of  the  cantons  a  serious  attempt  was  made, 
some  years  ago,  to  ameliorate  the  force  of  this  objec- 
tion to  the  referendum  by  imposing  a  fine  upon  every 
voter  who  failed  to  appear  at  the  polls.     The  polled 
vote  increased  as  a  result ;  but  the  real  aim  of  the  law 
Lf  %uj  was  not  achieved,  for  jnany__of_the_js^t_ers3[^^ 
fc**uiuw  the  polls  .under  tjie  spur  of  this^  compulsion  rendeixfl 
•  ^ Z*"^  perfunctory  conformance  by  dropping    blank    ballots 
^***^1nto  the  box._ 

32 


(i) 


^ 


INTRODUCTORY 

In  America  the  showing  upon  th]s  point  has^  been_ 
somewhat  better^  From  1780  to  191 1  the  voters  of 
Massachusetts  passed  upon  sixty  questions,  of  which 
they  answered  forty-one  in  the  affirmative.  All  were 
submitted  at  regular  elections.  In  only  a  few  cases 
has  the  total  vote  on  these  referenda  approached  the 
entire  vote  polled  for  candidates,  and  in  ten  cases  the 
number  of  votes  recorded  upon  the  measure  was  less 
than  one-fifth  of  the  total  vote  cast.  In  Boston,  dur- 
ing the  last  twenty  years,  there  have  been  thirty-three 
questions  of  local  interest  submitted  to  the  voters. 
Twenty  of  these  (one  each  year)  dealt  with  the  ques- 
tion of  liquor  licenses.  On  these  referenda  the  aver- 
age vote  was  63.3  per  cent,  of  the  entire  registered 
vote,  an  excellent  record  as  indicative  of  interest  in 
this  question.  On  the  other  questions  the  average 
was  only  59.3  per  cent.  It  is  interesting  to  notice, 
moreover,  that  the  largest  percentage  was  recorded 
upon  questions  which  prominently  involved  some  spe- 
cial interest.  The  request  of  a  street  railway  corpora- 
tion to  put  its  tracks  upon  a  certain  street,  the  demand 
of  city  laborers  for  fewer  hours  of  labor,  the  attempt 
of  certain  sections  of  the  city  to  eliminate  the  liquor 
trade  from  their  neighborhood — these  were  the  issues 
which  got  the  most  attention,  and  they  are  all  matters 
affecting  organized  interests  and  not  things  that 
touched  the  position  or  the  purse  of  the  whole  body  of 
citizens.  On  the  other  hand,  matters  which  did  vitally 
affect  the  interests  of  every  citizen  in  the  community 
— such  as  the  que.stion  of  adopting  what  virtually  con- 

33 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

stituted  a  new  charter   for  Boston — elicited  a  much 
less  comprehensive  expression  of  opinion.^ 

It  is  to  be  borne  in  mind,  moreover^  that  our  use 
of  the  referendum  in  the  United  States  has  been,  up 
to  the  present  time,  under  favorable  conditions.    Ques- 
tions have  been  submitted,  for  the  most  part,  at  the 
regular  elections  when  most  voters  come  to  the  polls 
anyway.     As  a  rule,  moreover,  only  a  few  questions 
have  hitherto  been  put  upon  the  ballot   at   any   one 
time.     But  the  use  of  the  referendum  on  a  scale  so 
broad  as  is  frequently  proposed  would  greatly  enhance 
the  difficulty  of  getting  a  reliable  expression  of  the 
public  will.     The  submission  of  questions  at  special 
elections   held   for   the   purpose,   particularly  if  these 
special  elections  should  be  held  frequently,  would  cer- 
tainly mitigate  against  the  polling  of  a  large  vote.     It 
may  well  be  doubted,  in  the  light  of  such  experience 
as  we  have  had,  whether  more  than  fifty  per  cent,  of 
the  registered  voters  would,  on  the  average,  appear  at 
these  special  elections.    We  should  have,  in  such  event, 
government  by  half  the  people  for  the  whole  people, 
which  is  scarcely  our  orthodox  definition  of  democ- 
racy.    The  submission  of  many  questions,  moreover, 
means  inevitably  that  none  will  get  very  much  scrutiny 
or  study.    The  average  voter  gives  just  about  so  much 
time  and  thought  to  political  questions  on  the  eve  of 


iPor  further  details  see  the  paper  by  Dr.  E.  M.  HartweU  on 
"Referenda  in  Massachusetts"  in  Proceedings  of  the  National  Mu- 
nicipal League,  1909,  334-353- 

34 


INTRODUCTORY 

an  election.  If  thirty  questions  be  submitted  to  him 
instead  of  three,  they  are  hkely  to  have,  in  sum,  no 
more  of  his  thought  or  consideration.  Two  or  three 
questions  he  may  and  sometimes  does  inquire  about 
and  form  his  own  opinion  upon.  But  for  guidance 
upon  a  score  or  more  of  matters,  if  these  are  to  come 
upon  his  ballot,  he  will  be  inclined  to  take  the  advice 
of  some  party,  organization  or  interest  with  which  he 
may  be  affiliated.  In  those  western  states  and  cities 
where,  under  newly  adopted  systems  of  direct  legisla- 
tion the  ballot  has  been  loaded  with  dozens  of  ques- 
tions often  of  minor  importance,  that  is  exactly  what 
has  happened.  The  real  voting  is  done,  not  by  the 
voter,  but  by  the  political  committee,  the  taxpayers' 
league,  the  labor  union,  or  some  other  organization 
whose  advice  on  political  matters  he  regards  as  coin- 
cident with  his  own  interest  and  whose  printed  pam- 
phlet of  instructions  he  takes  with  him  to  the  polls. 
In  one  western  city  the  politicians  provided  their  fol- 
lowers with  a  sheet  of  limp  cardboard  the  exact  size 
of  the  ballot.  Holes  had  been  cut  in  this  at  appro- 
priate places ;  the  voter  was  instructed  to  lay  the  card- 
board on  his  ballot,  and,  by  marking  his  cross  in  each 
hole,  he  voted  on  all  the  referenda  just  as  the  poli- 
ticians desired  him  to  vote.  Those  who  hope,  there- 
fore, that  the  system  of  direct  legislation  will  cause 
every  voter  to  inform  himself  concerning  the  merits 
of  each  proposed  measure,  or  that  it  will  break  the 
power  of  political  machines  by  making  the  voters  do 
something  which  the  politicians  cannot  influence  them 

35 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

in  doing,  have  as  usual  underestimated  the  ingenuity 
of  the  latter. 

It  may  be  suggested,  moreover,  that  not  only  does 
the  referendum  fail  in  many  cases  to  arouse  that  de- 
gree of  public  interest  and  discussion  which  is  neces- 
sary to  a  large  vote,  but  that  large  numbers  of  those 
who  do  vote  upon  submitted  measures  are  guided  by 
nothing  more  substantial  than  prejudice  or  caprice. 
It  is  well  known  to  politicians,  for  example,  that  other 
things  being  equal,  the  affirmative  side  of  any  ques- 
tion on  the  ballot  has  a  great  advantage.  Only  a  few 
months  ago  there  was  a  local  illustration  of  this  fea- 
ture in  electoral  psychology  when  the  opponents  of  a 
proposal  which  went  before  the  voters  of  a  Massachu- 
setts city  had  the  question  so  framed  that  they  would 
get  that  advantage  of  being  in  the  affirmative.^  The 
affirmative  seems,  in  fact,  to  have  a  bonus  equivalent 
to  that  of  the  candidate  whose  name  comes  first  on 
the  ballot.  Just  how  great  such  advantages  are,  can- 
not be  determined  by  any  safe  method  of  computation ; 
but  if  one  accepts  the  opinions  of  active  political 
workers,  they  are  sufficient  in  many  cases  to  turn  the 
scale. 

Other  electoral  tendencies,  more  or  less  capricious, 
are  disclosed  by  a  study  of  the  action  of  the  electorate 
upon  questions  that  have  been  submitted  to  them.     It 

1  As  originally  drawn  the  question  was  as  to  whether  a  certain 
public  undertaking  should  be  defrayed  by  the  issue  of  bonds  "out- 
side the  city's  debt  limit."  The  wording  was  changed  to  "within 
the  city's  debt  limit." 

36 


INTRODUCTORY 

is  clear,  for  example,  that  the  average  voter  carries 
with  him  into  the  polling-  booth  a  considerable  preju- 
dice against  corporate  interests,  and  is  prone  to  record 
his  voice  against  anything  that  looks  like  a  concession 
to  them.  When  city  charters  provide,  therefore,  that 
no  franchise  extensions  or  other  rights  may  be  granted 
to  public  service  corporations  except  with  the  approval 
of  a  majority  of  the  voters  at  the  polls,  a  serious  obsta- 
cle is  placed  in  the  way  of  granting  such  privileges, 
however  much  it  may  be  in  the  city's  interest  to  do 
so.  The  cry  against  privilege  in  any  of  its  forms 
is  easy  to  raise,  and  when  raised  always  has  effective- 
ness, as  do  the  various  race  and  religious  cries  which 
mischief-makers  raise  from  time  to  time.  Doubtless 
this  anti-corporation  prejudice  among  the  voters  is,  to 
a  considerable  extent,  not  without  reason :  corporate 
interests,  by  their  reckless  disregard  of  public  policy 
and  popular  opinion,  have  often  brought  it  upon  them- 
selves. But  prejudice  exists,  and  government  by 
prejudice,  warranted  or  unwarranted,  is  not  safe  gov- 
ernment. When  the  public  mind  is  inflamed  against 
an  offender,  though  justifiably  so,  no  one  with  a  clear 
sense  of  justice  would  urge  that  the  offender  should 
have  his  right  to  life,  liberty  or  property  adjudged 
by  a  jury  which  reflects  the  prejudice  of  the  com- 
munity rather  than  by  a  body  of  men  qualified  to  act 
dispassionately.  When  popular  passions  are  aroused, 
it  is  not  easy  to  get  a  jury  which  will  deal  fairly 
on  the  merits  of  an  issue,  nor  yet  a  legislature 
or  council  which  will  do  the  same.     But  all  three  of 


THE   INITIATIVE,   REFERENDUM   AND    RECALL 

those  bodies  will  probably  manifest  a  greater  inclina- 
tion to  fairness  than  the  whole  electorate  from  which 
their  members  are  drawn.  Where  vested  interests  are 
concerned,  measures  that  are  legislative  in  form  are 
very  often  adjudicative  in  effect.  To  hinge  their  ac- 
ceptance or  rejection  upon  the  issue  of  an  election  is 
accordingly  to  establish,  in  many  cases,  a  system  of 
administrative  adjudication  by  popular  caprice. 

On  the  other  hand,  voters  show  a  partiality  toward 
certain  interests  and  principles  which  may  not  be,  and 
frequently  are  not,  in  accord  with  the  general  interest. 
yhey  are  unduly  lenient,  as  a  jule,  toward  thexlaims 
of  all  who  hold  places  on_  the  cityjpayrolh  For  secur- 
ing higher  pay,  fewer  hours  and  favorable  terms  of 
service,  the  city  employee  can  scarcely  find  a  more 
useful  expedient  than  the  referendum.  The  public 
feels  kindly  toward  the  man  who  works  for  the  mu- 
nicipality at  a  small  daily  wage;  the  older  and  less 
competent  he  is,  the  more  sympathetic  it  seems  to  feel. 
When  the  employees  ask  for  something  they  are  apt 
to  get  it  without  much  scrutiny  from  the  mass  of  the 
voters.  That  is  _:yv1iy_policejnen,  jfiremen  and  others 
who  go  to  the  legislature_for  measures  in  their  owjj 
interest  art  always  willing  to  have  these  passed  widi 
aproviso  for  aJocal_referendum  attached.  Experience 
seems  to  show  that  legislatures  comply  much  more 
readily  with  requests  for  permissive  than  for  manda- 
tory legislation,  since  they  are  naturally  inclined  to 
feel  that  legislatic^n  of  the  former  sort  puts  no  final 
responsibility  upon  them.     So  also  the  voters  show  a 

38 


INTRODUCTORY 

pronounced  partiality  to  measures  which  propose  to 
pay  for  public  improvements  out  of  the  proceeds  of 
loans  rather  than  from  current  taxes.  It  is  but  natural 
that  men  should  desire  to  have  present  conveniences 
at  the  expense  of  future  generations ;  hence  when  a 
voter  is  asked  whether  he  will  pay  for  a  costly  public 
improvement  or  let  his  grandchildren  pay  for  it,  his 
answer  is  not  difficult  to  forecast.  For  a  time  it  was 
thought  that  since  municipal  councils  are  inclined  to 
be  prodigal  of  the  city's  credit,  the  necessity  of  sub- 
mitting proposed  loans  to  the  voters  would  afford  a 
salutan'  check.  As  such  it  has  proved,  however,  of 
little  or  no  service.  On  the  contrary,  it  has  rather 
favored  undue  borrowing  by  reducing  the  council's 
sense  of  responsibility  for  its  share  in  the  matter. 

Other  lines  along  which  the  electorate  is  apt,  as 
experience  shows,  to  be  guided  by  its  prejudices  or 
partialities  might  be  indicated ;  but  enough  has  been 
said  to  suggest  that  the  expressed  wish  of  the  people 
does  not  necessarily  represent  their  deliberate  judg- 
ment. When  voters  are  called  upon  with  frequency 
and  are  asked  to  express  themselves  upon  all  sorts 
of  matters  the  consideration  which  they  give  to  each 
question  must  be  of  the  most  superficial  sort  and,  being 
superficial,  erratic.  Public  sentiment  is  proverbially 
fickle  as  to  men ;  it  is  not  likely  to  be  any  less  so  as  to 
measures.  _As  men  have  gone  into  high  office  on  the 
crest  of  a  wave  and  have  been  dropped  out  on  its 
subsidence,  so  measures  and  policies  of  all  sorts  catch 
the  popular  fancy  for  one  season  and  are  discarded 

39 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

the  next.  It  is  scarcely  to  be  expected  that  an  in- 
creased participation  of  the  electorate  in  the  normal 
work  of  lawmaking  will  give  public  sentiment  any 
greater  stability ;  on  the  contrary,  the  statute-book 
would  in  all  probability  reflect  to  an  even  greater  ex- 
tent than  now  the  fleeting  opinions  of  people  whose 
political  ideals  are  seldom  very  firmly  anchored.  All 
this  is  reinforced  by  the  fact  that  the  voters,  upon 
questions  set  before  them,  must  record  categorical  an- 
swers. They  must  either  accept  or  reject  a  submitted 
measure.  There  is  no  room  for  compromise.  Yet 
compromise  has  played  a  large  part  in  the  making  of 
laws  under  the  representative  system.  Without  it 
progressive  legislation  would  often  have  proved  im- 
possible. To  ask  voters  for  an  unqualified  yea  or  nay 
is  to  disregard  the  fact  that  many  of  them  do  not  hold 
unqualified  opinions  and  cannot  fairly  express  their 
views  in  categorical  terms. 

An  objection  to  direct  legislation,  well  stated  in  a 
later  chapter,  is  based  upon  the  lack  of  harmony 
between^  that    system    aiTd_  the    traditional    American 


distinction  between  constitutional  and  ordinary  laws. 
Constitutions,  and  particularly  those  clauses  in  consti- 
tutions which  make  up  a  bill  of  rights,  have  been 
regarded  in  America  as  bulwarks  of  personal  liberty. 
A  certain  sanctity  has  attached  to  these  organic  laws 
because  they  have  been '  adopted  in  a  particularly 
formal  way  which  has  included  popular  approval  at 
the  polls.  Ordinary  laws,  on  the  other  hand,  have 
been  the  much  less  formal  work  of  legislatures.     But 

40 


INTRODUCTORY 

with  a  broad  use  of  direct  legislation  this  distinction 
would  entirely  disappear.  Constitutions  and  ordinary 
laws  would  be  made  and  unmade  by  the  same  pro- 
cedure :  the  people  would  initiate  both  by  their  peti- 
tions and  adopt  both  by  their  votes.  There  would 
be  no  more  security  for  personal  and  property  rights 
in  one  than  in  the  other.  Of  course  it  is  not  at  all 
certain  that  this  outcome  would  be  very  undesirable 
in  America.  In  England  there  has  never  been  any 
distinction  between  constitutional  and  ordinar\'  laws, 
yet  the  liberty  of  the  individual  has  not  suffered 
serious  impairment  on  that  account.  It  may  be  sug- 
gested, moreover,  that  constitutional  limitations  de- 
signed to  guard  private  rights  have  in  America  often 
overreached  themselves  and  b\  so  doing  have  offset 
much  of  the  merit  they  possess.  The  provision  which 
forbids  the  deprivation  of  property  without  "  due 
process  of  law  "  enunciates  a  wholesome  canon  of 
government ;  but  it  has  too  often  been  pressed  into 
service  as  a  means  of  thwarting-  some  much-needed 
social  and  economic  reforms.  Yet  whether  the  objec- 
tion thereto  be  valid  or  not,  it  remains  true  that  a  gen- 
eral use  of  the  initiative  and  referendum  would  sweep 
away  a  basic  principle  in  the  American  legal  system. 
In  \_v_eighing_th£  various  merits  aniLJiudts  of  the 
initiative  and  referendum  as  set  forth  in  the  foregoing 
pages  much  depends  upon  an  individual's  point  of 
view.  Alen  hold  widely  divergent  opinions,  for  ex- 
ample, concerning  the  degree  to  which  present  insti- 
tutions and  methods  have  failed,  in  the  United  States, 
4  41 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

to  measure  up  to  reasonable  expectations.  Yet  each 
man's  attitude  upon  that  question  determines  the  spirit 
in  which  he  approaches  the  new  proposals.  Much  de- 
pends, moreover,  upon  our  individual  notions  concern- 
ing what  the  populace  is  apt  to  do  under  different 
circumstances  and  these  notions  are  not  usually  built 
upon  sure  information.  The  psychology  of  the  crowd, 
despite  all  that  has  been  written  on  that  subject  by  a 
brilliant  French  author,  is  even  yet  a  terra  incognita 
to  students  of  political  science.  It  is  a  fact,  howejyer^ 
that   those  who  best  know  the  political  projDensi^ies. 


and  caprices  of  th*^ j/oLers ,  are^the^Ieast  ready  to^  turn^ 
over  to   them   the  jdec[sion   of    every-day    questions^ 


Whether  the  electorate,  with  due  education^  and  prac- 


tice, can  do  better  than  past^  experience  has  led  us  to 


i expect,  is  something  which  the  next  few  years  will 
probably^  jdisclose^ 

The  Recall. 

Unlike  the  initiative  and  referendum,  the  recall  is 
not  an  agency  of  legislation  but  of  administration.  It 
is  the  power  to  remove,  before  the  end  of  his  term,  any 
official  elected  by  the  voters.  Although  existing  for 
a  long  while  in  some  Swiss  cantons,^  it  made  its  first 
American  appearance  under  the  title  of  the  "  impera- 
tive mandate  "  in  the  Populist  propaganda  of  two 
decades  ago,  and  was  first  given  practical  recognition 
in  the  Los  Angeles  charter  of  1903.-    Since  that  time 

» For  example,  in  Berne,  Argau,  and  Schaffhausen 
»  Laws  of  California,  1903,  pp.  574-575- 

42 


INTRODUCTORY 

it  has  found  its  way  into  the  constitutions  and  general 
laws  of  several  states,  notably  those  of  Oregon,  Iowa, 
South  Dakota,  Washington.  Oklahoma  and  Califor- 
nia. It  has  also  been  provided  for  in  the  special  char- 
ters of  more  than  a  hundred  cities,  most  of  them 
municipalities  which  have  adopted  the  commission 
type  of  government. 

In  all  the  cities  which  have  adopted  the  recall,  with 
the  exception  of  Boston,  the  provisions  relating  to  it 
are  substantially  the  same.  Ordinarily  its  operation 
applies  only  to  elective  officers ;  but  in  one  or  two  cases 
it  extends  to  appointive  officials  as  well.  The  move- 
ment to  recall  an  officeholder  before  the  expiry  of  his 
term  is  invariably  begun  by  a  petition  which  sets  forth 
the  reasons  for  the  proposal.  This  petition,  when  it 
has  received  the  signatures  of  a  stated  percentage  of 
the  qualified  voters,  is  presented  to  some  designated 
municipal  authority.^  The  petition  is  duly  examined 
by  the  appropriate  officer ;  the  signatures  are  verified ; 
and  if  the  requirements  are  found  to  have  been  com- 
plied with,  a  recall  or  removal  election  is  ordered, 
usually  by  the  city  council.  In  some  cities  it  is  per- 
missible, in  case  the  number  of  signatures  is  not  suffi- 
cient, to  file  additional  names  in  a  supplementary 
petition.     And   although  there  have  been  no  specific 

» This  stated  percentage  ranges  ordinarily  from  fifteen  per  cent. 
to  twenty-five  per  cent. ;  but  in  a  few  cities  it  is  higher.  Sometimes 
it  is  a  percentage  of  the  registered  vote;  in  other  cases  a  percentage 
of  the  vote  cast  at  the  last  local  election.  The  designated  officer  is 
usually  the  city  clerk. 

43 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

provisions  in  city  charters  covering  the  point,  the 
courts  decided,  in  a  recent  Seattle  case,  tliat  voters 
whose  names  appeared  upon  a  petition  for  the  recall 
of  an  officer  might  withdraw  their  names  at  any  time 
prior  to  the  date  upon  which  the  petition  was  finally 
certified  as  sufficient.-^ 

When  a  valid  petition  has  been  transmitted  to  it, 
the  city  council  or  other  competent  authority  fixes  a 
date  for  the  removal  election,  which  must  be  within 
the  period  fixed  by  law.  Usually  it  is  provided  that  the 
officer  whose  removal  is  sought  shall  have  his  name 
placed  upon  the  ballot  at  this  election  unless  he  re- 
quests otherwise.  Other  candidates  for  the  office  may 
be  placed  in  nomination  by  the  usual  methods.  The 
recall  election  is  conducted,  so  far  as  polling  places 
and  the  other  machinery  of  voting  are  concerned,  like 
any  regular  election.  Unless  the  incumbent  receives 
the  highest  number  of  votes  among  the  candidates 
offering  themselves,  he  is  recalled ;  that  is,  he  leaves 
office  and  his  place  is  taken  by  that  candidate  who 
did  receive  the  largest  number  of  votes.  Ordinarily 
this  successor  fills  out  only  the  unexpired  term.  It  is 
frequently  provided,  in  order  to  prevent  abuses  of  the 
recall  procedure,  that  no  removal  petition  may  be  filed 
until  after  an  officer  has  been  at  least  six  months  in 
his  post  and  that  thereafter  a  petition  may  not  be  filed 
more  than  once  during  his  term  of  office.  The  con- 
stitutionality of  the  recall  has  invariably  been  upheld 

>  See  below,  p.  331. 
44 


INTRODUCTORY 

by  the  courts.  Following  its  adoption  in  city  charters 
the  recall  has  gained  recognition  in  the  constitutions 
of  Oregon  and  California,  in  the  latter  of  which  it 
is  applicable  not  only  to  the  executive  and  legislative 
departments  of  government  but  to  the  judiciary  as 
well. 

Since  its  first  adoption  by  an  American  city  eight 
years  ago  the  recall  has  been  put  into  operation  a 
number  of  times,  notably  in  Los  Angeles  and  in 
Seattle.  In  the  former  city  a  member  of  the  city 
council  was  removed  from  office  in  1904  and  in  1906 
a  movement  to  recall  the  mayor  was  forestalled  by  the 
latter's  resignation.  Seattle  in  1910  ousted  its  mayor 
after  a  violent  contest  and  the  friends  of  the  new  in- 
cumbent have  since  been  kept  employed  in  repelling 
persistent  efforts  to  dislodge  him  in  turn.  In  several 
other  cities  the  expedient  has  been  used,  sometimes 
achieving  its  end  and  sometimes  failing  to  do  so.  As 
yet  there  has  been  no  instance  of  the  recall  of  a  state 
officer  under  the  provisions  which  have  been  placed 
in  state  constitutions  within  the  last  four  years. 

In  the  amended  Boston  charter  of  1909  a  modified 
system  of  recall  was  established  in  connection  with 
the  mayoralty.  In  providing  for  a  four-year  mayoral 
term  the  framers  of  those  amendments  deemed  it  ad- 
visable to  entrust  to  the  voters  the  power  of  termi- 
nating a  mayor's  tenure  at  the  end  of  his  second  year 
in  office.  It  happens  that  the  state  elections  in  Massa- 
chusetts take  ])lace  in  November  and  that  the  Boston 
municipal  elections  are  held  in  January  following.     At 

45 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

the  state  elections,  accordingly,  the  voters  are  asked 
(and  this  without  the  filing  of  any  petition  on  their 
part )  whether  they  desire  an  election  for  the  post  of 
mayor  at  the  forthcoming  January  polling.  If  a  ma- 
jority of  the  registered  voters  pronounce  in  the  affirm- 
ative then  the  incumbent  of  the  mayoralty  vacates  his 
office  and  a  new  election  for  a  four-year  term  is  held. 
The  question  goes  on  the  state  ballot  once  every  four 
years,  that  is,  whenever  a  mayor's  term  is  halfway 
run.^ 

The  chief  argument  in  favor  of  the  recall,  as  ad- 
vanced by  friends  of  the  expedient,  is  its  efficacy  as 
an  agent  of  unremitting  popular  control  over  men  in 
public  office.  It  is  a  perpetual  reminder  of  preelection 
promises.  It  compels  each  officeholder  to  view  his 
every  public  act  in  the  light  of  what  the  voters  will 
think  of  it.  It  is  an  application,  in  a  wider  sense,  of 
that  principle  of  ministerial  responsibility  which  is  a 
feature  of  English  government  and  which  enables  the 
course  of  public  policy  to  be  altered  at  any  moment 
by  the  recall  of  a  cabinet  at  the  hands  of  the  House 
of  Commons.  It  assumes  that  the  relation  of  the 
voters  to  an  elective  officer  is  that  of  principal  and 
agent — that  the  agent's  power  of  attorney  may  be  re- 
voked at  any  time.      It  is,   accordingly,   a  means  of 

1  The  question  appeared  on  the  ballot  in  November,  191 1 ,  but  no 
serious  effort  was  made  to  influence  the  popular  verdict  either  way. 
As  the  total  registered  vote  of  Boston  is  about  1 10,000  it  would  have 
taken  over  55,000  affirmative  votes  to  recall  the  mayor.  The  result 
was  affirmative  37,262,  negative  32,501. 

46 


INTRODUCTORY 

keeping  all  officials  responsible  and  responsive  to  pub- 
lic opinion. 

That  the  possibility  of  recalling  officers  is  likely  to 
achieve  some  of  these  things  is  scarcely  to  be  denied. 
The  deference  of  an  office-seeker  to  public  sentiment 
is  proverbial ;  and  with  a  provision  for  his  recall  on 
the  statute-book  the  official  is  likely  to  be  kept  per- 
petually in  that  frame  of  mind.  There  is  little  question 
concerning  the  spur  to  official  responsiveness  which 
the  recall  provides.  The  only  question — and  an  im- 
portant question  it  is — concerns  the  effect  which  it 
will  have  upon  an  officer's  judgment  and  hence  upon 
his  efficiency.  Where  the  duty  of  an  official  is  solely 
that  of  reflecting  public  sentiment — and  that  seems  to 
be  the  only  function  of  councillors  elected  from  wards 
to  large  municipal  bodies — the  sponsors  of  the  recall 
provision  are  able  to  make  their  strongest  case.  Large 
city  councils  and  the  ward  system  of  election  have  as 
their  only  prop  the  strong  popular  feeling  that  all 
parts  of  the  city  and  all  elements  of  its  population 
ought  to  be  represented  in  the  city  government  and 
particularly  in  that  branch  of  it  which  governs  public 
expenditure.  One  may  defensibly  take  issue  with  this 
proposition ;  but  as  long  as  it  is  given  recognition  as 
a  working  principle  of  city  government,  as  it  still  is 
in  most  cities  of  the  country,  it  will  scarcely  be  gain- 
said that  those  whose  chief  function  is  to  reflect 
varieties  of  local  sentiment  should  be  made  to  do  this 
in  the  most  thorough  way.  And  the  recall  provision 
is  doubtless  a  useful  agency  in  that  direction. 

47 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

But  there  are  many  city  officers  upon  whom  is 
laid  not  only  the  task  of  reflecting  local  opinion,  but 
something  more.  In  its  administrative  departments 
the  city  requires  men  who  will  combine  a  responsive 
attitude  with  some  executive  skill  and  judgment.  The 
emphasis,  indeed,  ought  to  go  upon  the  latter  qualities. 
The  recall  provision,  however,  puts  the  whole  emphasis 
upon  the  former.  It  may  be  urged,  perhaps,  that  there 
is  really  no  difTference  between  these  two— that  an  offi- 
cial who  shows  skill  and  judgment  in  the  interests  of 
the  city  is  responding  to  the  wishes  of  its  citizens.  It 
does  not  take  much  political  experience  to  teach  one, 
however,  that  the  interests  of  the  municipality  as  these 
clearly  appear  to  a  competent  administrative  officer, 
and  the  zcnshes  of  the  citizens  as  they  are  apt  to  ex- 
press them  at  the  polls,  come  far  from  being  always 
the  same  thing.  The  case  for  the  recall  provision  in 
relation  to  administrative  officials  is  correspondingly 
weakened.  With  respect  to  judicial  officers  it  is  weak- 
est of  all  unless  we  are  prepared  to  accept  the  revo- 
lutionary doctrine  that  the  duty  of  a  judge  is  that  of 
a  supplementary  lawmaker. 

A  point  commonly  urged  in  favor  of  the  recall 
is  that  it  permits  the  lengthening  of  official  terms 
without  thereby  risking  the  establishment  of  a 
bureaucracy.  Short  terms,  particularly  for  adminis- 
trative officers,  have  been  a  vice  of  local  government. 
They  form  one  of  the  chief  reasons  why  city  adminis- 
tration in  the  United  States  has  failed  to  develop  any 
sound  traditions  of  efficiency.     The  only  ground  upon 

48 


INTRODUCTORY 

which  one  can  pretend  to  justify  the  practice  of  elect- 
ing comptrollers,  or  street  commissioners,  or  even 
mayors,  for  terms  of  one  or  two  years  is  the  desir- 
ability of  holding-  these  officials  directly  accountable 
to  the  electorate.  If  the  recall  provisions,  by  afford- 
ing a  potential  means  of  ousting  an  officer  who  proves 
unsatisfactory,  can  promote  the  practice  of  leaving  in 
office  for  long  terms  those  who  prove  themselves  com- 
petent, it  will  have  rendered  a  considerable  service  to 
the  cause  of  good  municipal  management.  The  extent 
of  this  service  must  depend,  however,  upon  the  fre- 
quency with  which  the  voters  bring  the  recall  machin- 
ery into  operation  and  the  motives  which  actuate  them 
in  doing  so.  If  political  or  capricious  motives  dom- 
inate their  action  and  if  men  are  accordingly  removed 
from  office,  not  because  they  are  inefficient  but  because 
they  are  politically  unpopular,  the  service  rendered  by 
the  recall  machinery  will  be  worse  than  worthless.  We 
should  then  have  no  more  than  long  terms  in  name 
and  short  terms  in  fact.  One  trouble  with  the  short 
term  is  that  it  forces  an  officer  to  waste  much  of  his 
time  and  energy  in  the  task  of  maintaining  his  political 
fences;  with  the  possibility  of  a  recall  election  con- 
stantly on  the  horizon  this  trouble  would  not  be  elim- 
inated by  the  merely  formal  lengthening  of  an  offi- 
cial's term. 

It  was  from  this  angle  that  the  framers  of  Boston's 
amended  charter  approached  the  proposal  to  incor- 
porate the  recall  provision  in  that  enactment.  Their 
decision  was  that  the  mayor's  term  should  be  length- 

49 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

ened  from  two  to  four  years;  but  that  he  should  be 
removable  by  the  voters  at  the  end  of  two  years. 
They  provided,  therefore,  a  recall  arrangement  which 
can  be  brought  into  operation  at  a  stated  point  in  the 
mayor's  term,  and  not  at  any  point  as  is  commoni}' 
permitted  in  other  cities.  They  stipulated,  moreover, 
that  a  majority  of  the  registered  vote  and  not  a  mere 
plurality  of  polled  votes  should  be  necessary  to  effect 
the  mayor's  removal.  In  other  words,  the  Boston  char- 
ter provides  a  system  whereby  the  voters  express  their 
opinion,  when  his  term  is  half  completed,  upon  the 
mayor's  record  in  office  and  not  upon  his  qualifica- 
tions as  compared  with  those  of  some  other  candidate 
or  candidates  whose  names  appear  upon  their  ballot. 
If  the  pronouncement  by  the  voters  is  decisively 
against  the  mayor — that  is,  if  a  majority  of  the  regis- 
tered voters  declare  against  his  continuance  in  office 
— the  decision  is  effective.  In  brief,  the  Boston  idea 
is  that  a  mayor,  when  elected  for  a  four-year  term, 
should  be  allowed  to  finish  it  out  unless  the  public  in- 
terest clearly  demands  his  removal. 

The  plan  of  popular  election,  as  a  means  of  getting 
competent  men  for  municipal  administrative  posts,  has 
never  been  crowned  with  much  success  either  in  Amer- 
ica or  elsewhere.  Administrative  skill  is  not  to  be 
had,  apparently,  by  asking  those  who  profess  it  to 
come  forward  as  candidates  for  election.  All  this  is 
so  well  recognized  that  the  practice  of  seeking  admin- 
istrative officials  by  popular  election  might  have  been 
wholly  abandoned  by  this  time  were  it  not  for  objec- 

.=50 


INTRODUCTORY 

tions.  which  seem  to  be  well  rooted  in  the  public  mind, 
against  the  only  other  method,  namely,  executive  ap- 
pointment. Making  offices  appointive  opens  the  way 
to  efficiency ;  but  when  men  are  appointed  to  office  for 
long  terms  they  tend  to  forget  that  the  public  is  a 
fastidious  master.  The  recall,  it  is  urged,  can  be  used 
to  secure  the  advantages  of  both  these  methods — elec- 
tion and  appointment — without  the  shortcomings  of 
either.  If  men  be  appointed  to  office  for  long  terms 
but  allowed  to  hold  office  subject  to  recall  should  oc- 
casion arise,  the  possibility  of  reconciling  efficiency 
with  accountability  comes  into  view.  The  right  men 
can  be  appointed,  and  after  appointment,  these  can  be 
held  to  the  proper  attitude. 

The  foregoing  assumes,  however,  that  the  power 
to  recall  an  officer  will  be  used  sparingly  and  for  good 
reason  only.  Otherwise  it  would  be  no  more  than  an 
effective  instrument  of  intimidation  and  blackmail. 
Nothing  indeed  can  be  predicted  with  certainty  con- 
cerning the  merits  and  faults  of  the  recall  in  operation 
until  after  it  has  had  a  trial  over  a  considerable  period 
and  under  varying  degrees  of  political  stress.  If  it 
can  develop  a  good  tradition,  it  may  prove  a  highly 
useful  addition  to  our  machinery  of  local  government. 
At  its  best  it  has  great  potentialities  for  good.  But 
at  its  worst  the  recall  contains  endless  possibilities  of 
political  demoralization  and  harm. 


CHAPTER    II 


NATIONALISM    AND   POPULAR  RULE  ^ 


In  Mr.  Herbert  Croly's  "  Promise  of  American 
Life,"^  the  most  profound  and  illuminating-  study  of 
our  national  conditions  which  has  appeared  for  many 
years,  especial  emphasis  is  laid  on  the  assertion  that 
the  whole  point  of  our  governmental  experiment  lies 
in  the  fact  that  it  is  a  genuine  effort  to  achieve  true 
democracy — both  political  and  industrial.  The  exist- 
ence of  this  nation  has  no  real  significance,  from  the 
standpoint  of  humanity  at  large,  unless  it  means  the 
rule  of  the  people,  and  the  achievement  of  a  greater 
measure  of  widely  diffused  popular  well-being  than 
has  ever  before  obtained  on  a  like  scale.  Unless  this 
is  in  very  truth  a  government  of,  by,  and  for  tiie 
people,  then  both  historically  and  in  world  interest 
our  national  existence  loses  most  of  its  point.  Nom- 
inal republics  with  a  high  aggregate  of  industrial  pros- 
perity, and  governed  normally  by  rich  traders  and 
manufacturers  in  their  own  real  or  fancied  interest, 

>  This  chapter  by  Colonel  Theodore  Roosevelt  is  reprinted   by 
permission   from  The  Outlook  of  January  21,  191 1. 
^  New  York,  The  Macmillan  Co.,  1909. 

52 


NATIONALISM  AND  POPULAR  RULE 

but  occasionally  by  violent  and  foolish  mobs,  have 
existed  in  many  previous  ages.  There  is  little  to  be 
gained  by  repeating  on  a  bigger  scale  in  the  Western 
Hemisphere  the  careers  of  Tyre  and  Carthage  on  the 
shores  of  the  Mediterranean. 

If  there  is  any  worse  form  of  government  than 
that  of  a  plutocracy,  it  is  one  which  oscillates  between 
control  by  a  plutocracy  and  control  by  a  mob.  It 
ought  not  to  be  necessary  to  point  out  that  popular 
rule  is  the  antithesis  of  mob  rule;  just  as  the  fact  that 
the  nation  was  in  arms  during  the  Civil  War  meant 
that  there  was  no  room  in  the  country  for  armed 
mobs.  Popular  rule  means  not  that  the  richest  man 
in  the  country  is  given  less  than  his  right  to  a  share 
in  the  work  of  guiding  the  government ;  on  the  con- 
trary, it  means  that  he  is  guaranteed  just  as  much 
right  as  any  one  else,  but  no  more — in  other  words, 
that  each  man  will  have  his  full  share  as  a  citizen, 
and  only  just  so  much  more  as  his  abilities  entitle  him 
to  by  enabling  him  to  render  to  his  fellow-citizens 
services  more  important  than  the  average  man  can 
render.  On  the  other  hand,  the  surest  way  to  bring 
about  mob  rule  is  to  have  a  government  based  on 
privilege,  the  kind  of  government  desired  not  only  by 
the  beneficiaries  of  privilege,  but  by  many  honest  re- 
actionaries of  dim  vision;  for  the  exasperation  caused 
by  such  a  government  is  sure  in  the  end  to  produce  a 
violent  reacti(jn  and  accompanying  excesses.  The 
Progressives,  in  fighting  for  sane  and  steady  progress, 
are  doing  all  they  can  to  safeguard  the  country  against 

Si 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

this  kind  of  unhealthy  oscillation,  of  government  by 
convulsion. 

A  number  of  Progressive  conventions  have  re- 
cently enunciated  the  following  among  other  principles 
as  necessary  to  popular  government : 

Drastic  laws  to  prevent  the  corrupt  use  of  money 
in  politics. 

Election  of  United  States  senators  by  direct  vote. 

Direct  primaries  for  the  nomination  of  elective 
officials. 

Direct  election  of  delegates  to  national  conven- 
tions, the  voter  to  express  his  choice  for  president  on 
the  ballot   for  delegate. 

The  introduction  of  the  initiative,  referendum  and 
recall. 

In  Oregon  most  of  these  principles  are  already 
law.  The  recent  Republican  state  platform  of  Wis- 
consin has  declared  for  all  of  these  principles;  and 
this  declaration  is  entitled  to  very  serious  considera- 
tion, for  Wisconsin  has  taken  a  leading  position  in 
Progressive  legislation  and  has  to  her  credit  a  note- 
worthy record  of  laws  for  social,  political  and  indus- 
trial betterment,  which  laws  have  been  proved  in 
actual  practice   and  have   worked  well. 

Most  Western  Progressives,  and  many  Eastern 
Progressives  (including  the  present  writer),  will  as- 
sent to  these  five  propositions,  at  least  in  principle. 
I  do  not  suppose  that  there  can  be  any  dissent  from 
the  need  of  passing  thoroughgoing  acts  to  prevent 
corrupt  practices.     The  movement  for  direct  primaries 

54 


NATIONALISM  AND  POPULAR  RULE 

is  spreading  fast.     Whether  it  shall  apply  to  all  elec- 
tive officials  or  to  certain  categories  of  them  is  a  mat- 
ter which  must  be  decided  by  the  actual  experience  of 
each  state  when  the  working  of  the  scheme  is  tested 
in   practice.      There   is   a   constantly  growing   feeling 
also  in  favor  of  the  election  of  United  States  senators 
by  direct  popular  vote.     On  this  point,  as  indeed  on 
most  of  these  points,  there  is  room  for  honest  diver- 
gence of   opinion,  but   I   believe  that  the  weight  of 
conviction   is  on  the  side  of  those  who  would  elect 
the   senators  by  popular  vote,   and  that   the  general 
feeling  is  inclining  this  way.     The  arguments  made 
against  such  method   of  election  are   practically  the 
same  as  the  arguments  originally  made  against  the 
election  of  president  by  popular  vote;  and  the  electoral 
college  was  designed  on  precisely  the  same  theory  in 
accord  with  which  it  was  supposed  that  the  legislature 
rather  than  the  people  should   be  trusted  to  choose 
the  best  type  of  senator.     Such  change  in  senatorial 
elections  would  no  more  alter  the  fundamental  prin- 
ciples of  our  government  than  they  were  altered  by 
the  change  in  presidential  elections.     At  present,  al- 
though the  form  of  an  electoral  college  is  preserved, 
the  vote  for  president  is  really  a  direct  popular  vote; 
and  this  absolute  reversal  in  practice  of  the  theory  of 
the  constitution  as  regards  the  choice  of  the  most  im- 
portant public  officer  in  the  land  offers  a  curious  com- 
mentary on  the  attitude  of  those  who  declaim  against 
all  change  by  practice  in  the  construction  of  the  letter 
of  a  written  constitution.      Again,  and  for  the  same 

55 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

reason,  it  seems  to  me  an  admirable  plan  that  there 
should  be  a  direct  election  of  delegates  to  national 
conventions,  with  opportunity  for  the  voter  to  express 
his  choice  for  president  and  vice-president ;  although, 
of  course,  such  latitude  of  action  must  be  left  to  the 
delegate  as  to  permit  his  exercising  his  own  judgment 
if  his  first  or  second  choice  proves  impossible.  This 
is  merely  slightly  to  alter  the  present-day  practice 
when  delegates  are  instructed  by  state  and  district 
conventions  to  vote  for  a  given  candidate. 

The  proposition  that  will  excite  most  misgiving 
and  antagonism  is  that  relating  to  the  initiative,  refer- 
endum and  recall.  As  regards  the  recall,  it  is  some- 
times very  useful,  but  it  contains  undoubted  possibili- 
ties of  mischief,  and  of  course  it  is  least  necessary  in 
the  case  of  short-term  elective  officers.  There  is,  how- 
ever, unquestionably  a  very  real  argument  to  be  made 
for  it  as  regards  officers  elected  or  appointed  for  life. 
In  the  United  States  government  practically  the  only 
body  to  whom  this  applies  is  the  judiciary,  and  I  shall 
accordingly  treat  the  matter  when  I  come  to  treat  of 
nationalism  and  the  judiciary. 

There  remain  the  initiative  and  referendum.  As 
regards  both  of  these,  I  think  that  the  anticipations  of 
their  adherents  and  the  fears  of  their  opponents  are 
equally  exaggerated.  The  value  of  each  depends 
mainly  upon  the  way  it  is  applied  and  upon  the  extent 
and  complexity  of  the  governmental  unit  to  which  it 
is  applied.  Every  one  is  agreed  that  there  must  be  a 
popular  referendum  on  such  a  fundamental  matter  as 

56 


NATIONALISM  AND  POPULAR  RULE 

a  constitutional  change,  and  in  New  Y(^rk  State  we 
already  have  what  is  really  a  referendum  on  various 
other  propositions  by  which  the  state  or  one  of  its 
local  subdivisions  passes  upon  the  propriety  of  action 
which  implies  the  spending  of  money,  permission  to 
establish  a  trolley  line  system  or  something  of  the 
kind.  Moreover,  where  popular  interest  is  sufficiently 
keen,  as  it  has  been  in  the  case  of  certain  amendments 
to  the  national  constitution  at  various  times  in  the 
past,  we  see  what  is  practically  the  initiative  under 
another  name.  I  believe  that  it  would  be  a  good  thing 
to  have  the  principle  of  the  initiative  and  the  referen- 
dum applied  in  most  of  our  states,  always  provided 
that  it  be  so  safeguarded  as  to  prevent  its  being  used 
either  wantonly  or  in  a  spirit  of  levity.  In  other 
words,  if  the  legislature  fails  to  act  one  way  or  the 
other  on  some  bill  as  to  which  there  is  a  genuine 
popular  demand,  then  there  should  unquestionably  be 
power  in  the  people  through  the  initiative  to  compel 
such  action.  Similarly,  on  any  bill  important  enough 
to  arouse  genuine  public  interest  there  should  be  power 
for  the  people  to  insist  upon  the  bill  being  referred  to 
popular  vote,  so  that  the  constituents  may  authorita- 
tively determine  whether  or  not  their  representatives 
have  misrepresented  them.  But  if  it  is  rendered  too 
easy  to  invoke  either  process,  the  result  can  be  only 
mischievous.  The  same  considerations  which  are  more 
and  more  tending  to  make  thoughtful  i)eople  believe 
that  genuine  popular  control  is  best  exercised  through 
the  short  ballot  have  weight  here  also.  There  are 
5  57 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

plenty  of  cases  in  which,  on  a  given  issue  of  sufficient 
importance,  it  is  better  that  the  people  should  decide 
for  themselves  rather  than  trust  the  decision  to  a  body 
of  representatives — and  our  present-day  acceptance  of 
this  fact  is  shown  by  our  insistence  upon  a  direct  vote 
of  the  state  when  the  state  adopts  a  new  constitution. 
But  ordinary  citizens  in  private  life — such  as  the  pres- 
ent writer  and  most  of  his  readers — neither  can  nor 
ought  to  spend  their  time  in  following  all  the  minutiae 
of  legislation.  This  work  they  ought  to  delegate  to 
the  legislators,  who  are  to  make  it  their  special  busi- 
ness; and  if  scores  of  bills  are  habitually  presented 
for  popular  approval  or  disapproval  at  every  election, 
it  is  not  probable  that  good  will  come,  and  it  is  certain 
that  the  percentage  of  wise  decisions  by  the  people  will 
be  less  than  if  only  a  few  propositions  of  really  great 
importance  «are  presented.  It  is  necessary  to  guard 
not  only  against  the  cranks  and  well-meaning  busy- 
bodies  with  fads,  but  also  against  the  extreme  laxity 
with  which  men  are  accustomed  to  sign  petitions. 
There  was  a  curious  instance  of  this  trait  at  the  recent 
elections  in  Cincinnati.  Aside  from  the  regular  nom- 
inees, there  was  in  one  district  a  man  nominated  on 
petition.  He  had  enough  names  put  on  the  petition 
to  insure  his  running,  but  at  the  election  he  got  only 
about  one-seventh  as  many  votes  as  there  were  names 
on  the  petition.  A  much  larger  proportion  of  men 
should  be  required  to  petition  for  an  initiative  than 
for  a  referendum,  but  in  each  case  the  regulations  both 
as  to  the  number  of  names  required  and  as  to  addi- 

.58 


NATIONALISM  AND  POPULAR  RULE 

tional  guarantees  where  necessary  should  be  such  as 
to  forbid  the  invocation  of  this  method  of  securing 
popular  action  unless  the  measure  is  one  of  real  im- 
portance, as  to  which  there  is  a  deep-rooted  popular 
interest.  Oregon  has  already  tried  the  principle  of 
the  initiative  and  the  referendum,  and  it  seems  to  have 
produced  good  results — certainly  in  the  case  of  the 
referendum,  and  probably  in  the  case  of  the  initiative. 
This,  of  course,  does  not  necessarily  mean  that  the 
principle  would  work  well  in  all  other  communities, 
and  under  our  system  it  is  difficult  to  see  at  present 
how  it  could  normally  have  more  than  a  state-wide 
application.  In  Switzerland  it  has  been  applied  both 
in  the  cantons,  or  states,  and  in  the  federal  or  national 
government,  and  it  seems  on  the  w'hole  to  have  worked 
fairly  well.  Those  who  anticipate  too  much  from  the 
new  system,  however,  would  do  well  to  study  its  work- 
ings in  Switzerland.  There  have  now  and  then  been 
odd  results.  Recently  by  the  use  of  the  initiative  a 
certain  bill  was  proposed  to  the  federal  legislature. 
There  was  such  a  strong  demand  for  its  passage,  as 
shown  by  the  vote  on  the  initiative  and  by  the  general 
popular  agitation,  that  the  legislature  passed  it  with 
but  one  dissenting  vote.  At  the  ensuing  election  the 
representative  who  had  cast  the  dissenting  vote  was, 
because  of  having  done  so,  beaten ;  but  on  the  referen- 
dum the  people  defeated  the  measure  itself!  They 
demanded  it  on  tlie  initiative,  all  their  representatives 
in  the  legislature  with  one  exception  voted  for  it  on 
its  passage,   they  beat  the  one  man  who  had  voted 

59 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

against  it,  and  then  on  the  referendum  they  defeated 
the  bill  itself. 
y      Unquestionably  an  ideal  representative  body  is  the 
best  imaginable  legislative  body.    Such  a  body,  if  com- 
posed of  men  of  unusual  courage,   intelligence,  sym- 
pathy and  high-mindedness,  anxious  to  represent  the 
people,  and  at  the  same  time  conscientious  in  their 
determination  to  do  nothing  that  is  wrong,  would  so 
act  that  there  would  never  come  the  slightest  demand 
for  any  change  in  the  methods  of  enacting  laws.     Un- 
fortunately, however,  in  actual  practice,  too  many  of 
our  legislative  bodies  have  not  really  been  representa- 
tive; and  not  a  few  of  the  ablest  and  most  prominent 
men   in  public  life  have   prided  themselves  on  their 
ability  to  use  parliamentary  forms  to  defeat  measures 
for  which  there  was  a  great  popular  demand.     Spe- 
cial interests  which  would  be  powerless  in  a  general 
election  may  be  all-powerful  in  a  legislature  if  they 
enlist  the  services  of  a  few  skilled  tacticians;  and  the 
result  is  the   same  whether  these  tacticians   are   un- 
scrupulous and  are  hired  by  the  special  interests,  or 
whether  they  are  sincere  men  who  honestly  believe 
that  the  people  desire  what  is  wrong  and  should  not 
be  allowed    to  have   it.      Normally    a    representative 
should  represent  his  constituents.     If  on  any  point  of 
real  importance  he  finds  that  he  conscientiously  differs 
with  them,  he  must,  as  a  matter  of  course,  follow  his 
conscience,  and  thereby  he  may  not  only  -perform  his 
highest  duty,  but  also  render  the  highest  possible  serv- 
ice to  his  constituents  themselves.     But  in  such  case 

60 


NATIONALISM  AND  POPULAR  RULE 

he  should  not  try  to  achieve  his  purpose  by  tricking 
his  constituents  or  by  adroitly  seeking  at  the  same 
time  to  thwart  their  wishes  in  secret  and  yet  appar- 
ently to  act  so  as  to  retain  their  good  will.  He  should 
never  put  holding  his  office  above  keeping  straight 
with  his  conscience,  and  if  the  measure  as  to  which 
he  dififers  with  his  constituents  is  of  sufficient  impor- 
tance, he  should  he  prepared  to  go  out  of  office  rather 
than  surrender  on  a  matter  of  vital  principle.  Nor- 
mally, however,  he  must  remember  that  the  very 
meaning  of  the  word  representative  is  that  the  con-  \ 
stituents  shall  be  represented.  It  is  his  duty  to  try 
to  lead  them  to  accept  his  views,  and  it  is  their  duty 
to  give  him  as  large  a  latitude  as  possible  in  matters 
of  conscience,  realizing  that  the  more  conscientious 
the  representative  is  the  better  he  will  in  general  repre- 
sent them;  but  if  a  real  and  vital  split  on  a  matter  of 
principle  occurs,  as  in  the  case  of  a  man  who  believes 
in  the  gold  standard  Ijut  finds  that  his  constituents 
belie\e  in  free  silver,  the  representative's  duty  is 
neither  to  abandon  his  own  belief  nor  to  try  to  beat 
his  constituents  by  a  trick,  but  to  fight  fairly  for  his 
convictions  and  cheerfully  accept  defeat  if  he  cannot 
convert  his  constituents  to  his  way  of  thinking — ex- 
actly the  attitude  that  the  late  Senator  Lamar,  of 
Mississippi,  once  took  on  this  very  question  and 
triumphed,  and  exactly  the  attitude  that  the  late  Con- 
gressman Dargan,  of  North  Carolina,  took  at  the 
price  of  his  political  life. 

Incidentally   the   referendum   is   certain   to   be   of 

6i 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

great  use  in  a  particular  class  of  cases  which  very 
much  puzzle  the  average  legislator — where  a  minority 
of  his  constituents,  but  a  large  and  influential  minority, 
may  demand  something  concerning  which  there  is 
grave  doubt  whether  the  majority  does  or  does  not 
sympathize  with  the  demand.  In  such  a  case  the 
minority  is  active  and  determined;  the  majority  can 
be  roused  only  if  the  ciuestion  is  directly  before  it.  In 
other  words,  the  majority  does  not  count  it  for  right- 
eousness in  a  representative  if  he  refuses  to  yield  to  a 
minority;  while  a  minority,  on  the  other  hand,  will 
not  tolerate  adverse  action.  In  such  cases  the  temp- 
tation to  the  ordinary  legislator  is  very  great  to  yield 
to  the  demand  of  the  minority,  as  he  fears  its  con- 
crete and  interested  wrath  much  more  than  the  tepid 
disapproval  of  the  majority.  In  all  such  questions  the 
referendum  would  offer  much  the  wisest  and  most 
efficient  and  satisfactory  solution. 

The  opponents  of  the  referendum  and  initiative, 
therefore,  would  do  well  to  remember  that  the  move- 
ment in  favor  of  the  two  is  largely  due  to  the  failure 
of  the  representative  bodies  really  to  represent  the 
people.  There  has  been  a  growing  feeling  that  there 
should  be  more  direct  popular  action  as  an  alternative, 
not  to  the  action  of  an  ideal  legislative  body,  but  to 
the  actions  of  legislative  bodies  as  they  are  now  too 
often  found  in  very  fact  to  act.  The  movement  for 
direct  popular  government  in  Oregon,  for  instance, 
was  in  part  the  inevitable  consequence  of  the  gross 
betrayal  of  their  trust  by  various  representatives  of 

62 


NATIONALISM  AND   POPULAR  RULE 

Oregon  in  the  national  and  state  legislatures,  and  by 
the  men  put  in  appointive  office  through  the  exertions 
of  these  representatives.  Moreover,  the  opponents, 
and,  for  the  matter  of  that,  the  adherents  likewise, 
of  the  proposed  change,  when  they  speak,  whether  in 
praise  or  in  blame  of  its  radicalism,  Avould  do  well  to 
remember  that  in  one  of  the  oldest  and  most  conser- 
vative sections  of  the  country  there  has  existed 
throughout  our  national  life,  and  now  exists,  a  form 
of  local  self-government  much  more  radical  where  it 
applies  than  even  the  initiative  and  referendum.  I 
refer  to  the  New  England  town  meeting,  at  which  all 
purely  town  matters  are  decided  without  appeal  by 
the  vote  of  the  townspeople  in  meeting  assembled.  In 
no  other  part  of  the  world,  save  in  two  or  three  can- 
tons of  Switzerland,  and  perhaps  in  certain  districts 
of  Norway,  is  there  any  form  of  government  so  ab- 
solutely democratic,  so  absolutely  popular,  as  the  New 
England  town  meeting.  The  initiative  and  referen- 
dum represent  merely  the  next  stage.  The  town  meet- 
ing has  been  proved  to  work  admirably  as  regards 
certain  governmental  units  where  the  citizens  are  of 
a  certain  type.  The  initiative  and  referendum  have 
been  shown  to  work  well  as  regards  certain  larger 
constituencies  of  a  different  type.  The  men  living  in 
states  where  the  town  meeting  has  flourished  for  cen- 
turies should  be  the  last  to  feel  that  the  initiative  and 
referendum  are  in  and  of  themselves  revolutionary 
propositions. 

On  the  other  liand,  the  advocates  of  the  initiative 

63 


> 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

and  referendum  should,  in  their  turn,  remember  that 
those  measures  are  in  themselves  merely  means  and 
not  ends;  that  their  success  or  failure  is  to  be  deter- 
mined not  on  a  priori  reasoning  but  by  actually  testing 
how  they  work  under  varying  conditions ;  and,  above 
all,  that  it  is  foolish  to  treat  these  or  any  other  devices 
for  obtaining  good  government  and  popular  rule  as 
justifying  sweeping  condemnation  of  all  men  and 
communities  where  other  governmental  methods  are 
preferred.  There  is  probably  no  class  of  men  who 
ought  to  study  history  as  carefully  as  reformers — 
except  reactionaries,  for  whom  the  need  is  even 
greater.  A  careful  study  of  eighteenth-century  France 
ought  to  show  the  reactionary  that  the  rejection,  by 
the  beneiiciaries  of  special  privilege,  of  wise  and  mod- 
erate progressiveness,  like  that  of  Turgot,  inevitably 
tends  to  produce  the  most  calamitous  explosion ;  and, 
on  the  other  hand,  the  ultra-reformers  will  do  well  to 
ponder  the  harm  done  in  their  turn  by  the  Jacobins, 
the  inevitable  reaction  produced  by  their  excesses,  and 
especially  by  the  queer  attitude  they  assumed  when 
they  first  defied  the  people  and  demanded  the  abso- 
lute rule  of  the  people  and  then  declined  to  submit  to 
the  judgment  of  the  very  people  they  had  just  defied 
because  that  judgment  was  not  sufficiently  favorable. 
The  initiative  and  the  referendum  are  devices  for 
giving  better  and  more  immediate  effect  to  the  popular 
will.  If  in  any  given  state — Vermont,  for  instance, 
or  Massachusetts,  or  New  Hampshire,  or  New  Jersey, 
or  New  York — the  people  are  not  now  ready  to  adopt 

64 


NATIONALISM   AND    POPULAR    RULE 

either,  or  even  if  lliey  never  become  ready — why,  that 
is  their  affair,  and  the  genuinely  Progressive  leader 
will  no  more  ostracize  and  read  out  of  the  company 
of  Progressives  a  New  England  state  which  thinks 
it  can  achieve  popular  government  without  the  refer- 
endum than  he  would  read  out  some  state  in  another 
part  of  the  country  because  it  has  never  adopted  the 
town  meeting.  Personally  I  should  like  to  see  the 
initiative  and  referendum,  with  proper  safeguards, 
adopted  generally  in  the  states  of  the  Union,  and  per- 
sonally I  am  sorry  that  the  New  England  town  meet- 
ing has  not  spread  throughout  the  Union.  But  I  cer- 
tainly do  not  intend  to  part  company  from  other 
Progressives  who  fail  to  sympathize  with  me  in  either 
view,  and  I  do  intend  to  insist  with  all  the  strength 
I  have  that  each  device  is  a  device  and  nothing  more, 
is  a  means  and  not  an  end.  The  end  is  good  govern- 
ment, obtained  through  genuine  popular  rule.  Any 
device  that  under  given  conditions  achieves  this  end 
is  good  for  those  conditions,  and  the  value  of  each 
device  must  be  tested  purely  by  the  answer  to  the 
question,  does  it  or  does  it  not  secure  the  end  in  view  ? 
One  of  the  worst  faults  that  can  be  committed  by 
practical  men  engaged  in  the  difficult  work  of  self- 
government  is  to  make  a  fetish  of  a  name,  or  to  con- 
found the  means  with  the  end.  The  end  is  to  secure 
justice,  equality  of  opportunity  in  industrial  as  well 
as  in  political  matters,  to  safeguard  the  interests  of 
all  the  people,  and  to  w'ork  for  a  system  which  shall 
promote  the  general  diffusion  of  well-being  and  yet 

6S 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

give  ample  rewards  to  those  who  in  any  walk  of  life 
and  in  any  kind  of  work  render  exceptional  service  to 
the  coinmunity  as  a  whole.  We  do  not  want  to  pro- 
duce a  dead  level  of  achievement  and  reward ;  we  want 
to  give  the  exceptional  rewards,  in  the  way  of  appro- 
bation or  in  whatever  other  fashion  may  be  necessary, 
to  the  exceptional  men,  the  Lincolns,  Grants,  Mar- 
shalls,  Emersons,  Longfellows,  Edisons,  Pearys,  who 
each  in  his  own  line  does  some  special  service;  but 
we  wish  so  far  as  possible  to  prevent  a  reward  being 
given  that  is  altogether  disproportionate  to  the  serv- 
ices, and  especially  to  prevent  huge  rewards  coming 
where  there  is  no  service  or  indeed  where  the  action 
rewarded  is  detrimental  instead  of  beneficial  to  the 
public  interest. 

Ours  is  a  government  of  laws,  but  every  one  should 
keep  always  before  him  the  fact  that  no  law  is  worth 
anything  unless  there  is  the  right  kind  of  man  behind 
it.  In  tropical  America  there  are  many  republics 
whose  constitutions  and  laws  are  practically  identical 
with  ours,  yet  some  of  these  republics  have,  through- 
out their  governmental  career,  alternated  between  des- 
potism and  anarchy,  and  have  failed  in  striking  fash- 
ion at  every  point  where  in  equally  striking  fashion 
we  have  succeeded.  The  difference  was  not  in  the 
laws  or  the  institutions,  for  they  were  the  same.  The 
difference  was  in  the  men  who  made  up  the  com- 
munity, in  the  men  who  administered  the  laws,  and 
in  the  men  who  put  in  power  the  administrators. 

If  we  choose  senators  by  popular  vote  instead  of 

66 


NATIONALISM  AND  POPULAR  RULE 

through  the  legislatures,  we  shall  not  thereby  have 
secured  good  representatives ;  we  shall  merely  have 
given  the  people  a  better  chance  to  get  good  represen- 
tatives. If  they  choose  bad  men,  unworthy  men, 
whether  their  unworthiness  take  the  form  of  corrup- 
tion or  demagogy,  of  truckling  to  special  interests  or 
of  truckling  to  the  mob,  we  shall  have  worked  no 
improvement.  There  have  been  in  the  past  plenty  of 
unworthy  governors  and  congressmen  elected,  just  as 
there  have  been  plenty  of  bad  senators  elected.  Simi- 
larly, if  the  direct  primary  merely  means  additional 
expense  without  compensating  advantage  in  wise  and 
just  action,  the  gain  will  be  nil.  At  present  there  are 
cities  where  the  direct  primary  obtains,  in  which,  so 
far  as  I  can  see,  the  boss  system  is  about  as  firmly 
rooted  as  in  those  cities  where  the  direct  primary  has 
not  been  introduced.  So  with  the  initiative  and  the 
referendum.  Vermont  has  neither;  Oregon  has  both. 
In  whichever  state  there  is  the  less  corruption  and 
greater  justice,  in  whichever  state  the  elected  repre- 
sentatives of  the  people  are  more  upright,  clean  and 
able,  in  whichever  state  the  people  are  themselves  wiser 
in  action,  more  prompt  to  recognize  and  reward  good 
service  and  fearlessness  and  independence  in  judge, 
governor,  senator,  or  congressman,  why,  in  that  state 
we  shall  find  the  best  government,  wholly  without 
regard  to  the  particular  device  by  which  the  govern- 
ment is  obtained.  If  both  states  show  equally  well 
in  these  matters,  why,  it  means  that  each  has  devised 
the  instrument  best  suited  for  its  own  needs.     It  is 

67 


THE  INITIATIVE,   REFERENDUM    AND    RECALL 

folly  not  to  adopt  the  new  instrument  if  experience 
shows  it  to  be  an  instrument  which  usually  produces 
better  results ;  and  if  we  are  convinced  that  it  is  a 
better  instrument,  then  we  should  endeavor  by  reason 
and  argument  to  get  our  neighbors  to  adopt  it ;  but  it 
is  also  folly  to  refuse  to  work  with  good  men  who 
are  striving  for  the  same  progressive  ends  as  we  are, 
merely  because  these  good  men  prefer  older  instru- 
ments than  those  which  we  believe  to  be  best  fitted 
for  the  purpose. 

I  believe  in  adopting  every  device  for  popular  gov- 
ernment which  is  in  theory  good  and  when  the  prac- 
tice bears  out  the  theory.  It  is  of  course  true  that 
each  is  only  a  device,  and  that  its  worth  must  be 
shown  in  actual  practice ;  and  it  is  also  true  that  where, 
as  with  us,  the  people  are  masters,  the  most  vital  need 
is  that  they  shall  show  self-mastery  as  well  as  the 
power  to  master  their  servants.  But  it  is  often  im- 
possible to  establish  genuine  popular  rule  and  get  rid 
of  privilege,  without  the  use  of  new  devices  to  meet 
new  needs.  I  think  that  this  is  the  situation  which 
now  confronts  us  in  the  United  States,  and  that  the 
adoption  in  principle  of  the  programme  on  which  the 
Progressives,  especially  in  the  West,  are  tending  to 
unite,  offers  us  the  best  chance  to  achieve  the  desired 
result. 


CHAPTER  III 

THE    ISSUES    OF    REFORM  ^ 

The  political  discussions  of  recent  years  concern- 
ing the  reform  of  our  political  methods  have  carried 
us  back  to  where  we  began.  We  set  out  upon  our 
political  adventures  as  a  nation  with  one  distinct  ob- 
ject, namely,  to  put  the  control  of  government  in  the 
hands  of  the  people,  to  set  up  a  government  by  public 
opinion  thoroughly  democratic  in  its  structure  and 
motive.  We  were  more  interested  in  that  than  in 
making  it  efficient.  Efficiency  meant  strength ; 
strength  might  mean  tyranny;  and  we  were  minded 
to  have  liberty  at  any  cost.  And  now,  behold,  when 
our  experiment  is  a  hundred  and  thirty  odd  years 
old,  we  discover  that  we  have  neither  efficiency  nor 
control.  It  is  stated  and  conceded  on  every  side  that 
our  whole  representative  system  is  in  the  hands  of  the 
"  machine  " ;  that  the  people  do  not  in  reality  choose 
their  representatives  any  longer,  and  that  their  repre- 

'  By  Governor  Woodrow  Wilson.  Reprinted  by  permission, 
in  part  from  the  North  American  Review,  May,  1910,  and  in  part 
from  an  address  on  "The  Issues  of  Reform,"  delivered  in  Kansas 
City  on  May  5,  ign. 

6q 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

sentatives  do  not  serve  the  general  interest  unless  dra-- 
gooned  into  doing  so  by  extraordinary  forces  of  agi- 
tation, but  are  controlled  by  personal  and  private  in- 
fluences; that  there  is  no  one  anywhere  whom  we  can 
hold  publicly  responsible,  and  that  it  is  hide-and-seek 
who  shall  be  punished,  who  rewarded,  who  preferred, 
who  rejected ;  that  the  processes  of  government 
amongst  us,  in  short,  are  haphazard,  the  processes  of 
control  obscure  and  ineffectual.  And  so  we  are  at  the 
beginning  again.  We  must,  if  any  part  of  this  be 
true,  at  once  devote  ourselves  again  to  finding  means 
to  make  our  governments,  whether  in  our  cities,  in 
our  states,  or  in  the  nation,  representative,  responsible 
and  efificient. 

Efficiency,  of  course,  depends  largely  upon  organ- 
ization. There  must  be  definite  authority,  centered  in 
somebody  in  particular  whom  we  can  observe  and  con- 
trol, and  an  organization  built  upon  obedience  and 
cooperation,  an  organization  which  acts  together,  with 
system,  intelligence  and  energy.  We  were  afraid  of 
such  an  organization  at  the  outset.  It  seemed  to  mean 
the  concentration  of  authority  in  too  few  hands  and 
the  setting  up  of  a  government  which  might  be  too 
strong  for  the  people.  Our  chief  thought  was  of  con- 
trol. We  concluded  that  the  best  means  of  obtaining 
it  was  to  make  practically  every  ofiice  elective,  whether 
great  or  small,  superior  or  subordinate;  to  bring  the 
structure  of  the  government  at  every  point  into  direct 
contact  with  the  people.  The  derivation  of  every  part 
of  it  we  desired  should  be  directly  from  the  people. 

70 


THE  ISSUES  OF  REFORM 

We  were  very   shy   of  appointments  to  office.     We 
wished  only  elections,  frequent  and  direct. 

As  part  of  the  system — we  supposed  an  indispens- 
able part — we  defined  the  duties  of  every  office,  great 
or  small,  by  statute,  and  gave  to  every  officer  a  defi- 
nite legal  independence.  We  wished  him  to  take  his 
orders  only  from  the  law — not  from  any  superior,  but 
from  the  people  themselves,  whose  will  the  law  was 
intended  to  embody.  No  officer  appointed  him  and  no 
officer  could  remove  him.  The  people  had  given  him 
his  term,  short  enough  to  keep  him  in  mind  of  his 
responsibility  to  them,  and  would  not  suffer  any  one 
but  themselves  to  displace  him,  unless  he  became  him- 
self an  actual  breaker  of  the  law.  In  that  case,  he 
might  be  indicted  like  any  other  lawbreaker.  But  his 
indictment  would  be  a  family  affair;  no  discipline  im- 
posed upon  him  by  his  superiors  in  office  but  a  trial 
and  judgment  by  his  neighbors.  A  district  attorney, 
elected  on  the  same  "  ticket  "  with  himself,  would 
bring  the  matter  to  the  attention  of  a  grand  jury  of 
their  neighbors,  men  who  had  in  all  likelihood  voted 
for  them  both,  and  a  ])etit  jury  of  the  same  neighbor 
hood  would  hear  and  decide  the  case  if  a  true  bill  were 
found  against  him.  He  stood  or  fell  by  their  judg 
ment  of  the  law,  not  by  his  character  or  efficiency. 

■A  shexifLiil  Q"6  '^f  the_states  suffered  a  prisQ]2£r 
to  be  taken  from  him  by  a  mob  and  Jiauged.  He 
made  no  show  oji^pretenre  even  of  resistance.  T 
governor  of  the  state  wrote  him  a  shar^  letter  or 
buke  for  his  criminal  neglect  of  his  dut^    He  replied 

71 


\ 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

in  an_open_iett£.r  in  whjch  he  bluntly_  rec[tiest_ed._lbe 
governor  to  mind  his  ow-u  business.     The  interesting:^ 
feature  of  the  reply  was-not  its  impudence,  but  th^, 
fact  that  it  could_be  written  with  perfect  impunitj;^ 
THe  fact  was^  as  he  had  stated  it.     He  was  notjie^ 
sponsible  to  the  jxDvernor^rJo_aiTx. other  officer  what— 
ever,  but  only  tojhe  voters  of  jiis  neighborhood_,  nianyL- 
of     whom     had     composed     the     rnob     whicJi— took 

"His    prisoner    from    him and_J]^nged  Jiini_  3_L_lhe44:- 

leisure.     He  was  never  called  to  account  for  what  he 
had  done. 

1  hisis  a  sample  of  our  direct  responsibility  to 
the  people  as  a  legal  system.  It  was  very  serviceable 
and  natural  so  long  as  our  communities  were  them- 
selves simple  and  homogeneous.  The  old  New  Eng- 
land town  meeting,  for  example,  was  an  admirable 
instrument  of  actual  self-government.  Where  neigh- 
borhoods are  small,  and  neighbors  know  one  another, 
they  can  make  actual  selection  of  the  men  they  wish 
to  put  into  office.  Every  candidate  is  known  by  every- 
body, and  the  officers  of  government  when  elected 
serve  a  constituency  of  whose  interests  and  opinions 
they  are  keenly  and  intimately  aware.  Any  com- 
munity whose  elements  are  homogeneous  and  whose 
interests  are  simple  can  govern  itself  very  well  in  this 
informal  fashion.  The  people  in  such  a  case,  rather 
than  the  government,  are  the  organism.  But  those 
simple  days  have  gone  by.  The  people  of  our  present 
communities,  from  one  end  of  the  country  to  the  other, 
are   not   homogeneous   but   composite,   their   interests 

72 


THE  ISSUES  OF  REFORM 

varied  and  extended,  their  life  complex  and  intricate. 
The  voters  who  make  them  up  are  largely  strangers 
to  each  other.  Town  meetings  are  out  of  the  question, 
except  for  the  most  formal  purposes,  perfunctorily 
served ;  life  sweeps  around  a  thousand  centers,  and  the 
old  processes  of  selection,  the  old  bases  of  responsi- 
bility, are  impossible.  Officers  of  government  used 
to  be  responsible  because  they  were  known  and  closely 
observed  by  neighbors  of  whose  opinions  and  prefer- 
ences they  were  familiarly  aware ;  but  now  they  are 
unknown,  the  servants  of  a  political  organization,  not 
of  their  neighbors,  irresponsible  because  obscure,  or 
because  defended  by  the  very  complexity  of  the  system 
of  which  they  form  a  part.  The  elective  items  on 
every  voter's  programme  of  duty  have  become  too 
nuniernus  to  be  dealt  with  separately  and  are,  conse- 
quently, dealt  with  in  the  mass  and  by  a  new  system, 
the  system  of  political  machinery  against  which  we 
futilely  cry  out. 

I  say  "  futilely  cry  out  "  because  the  machine  is 
both  natural  and  indispensable  in  the  circumstances  and 
cannot  be  abolished  unless  the  circumstances  are 
changed,  and  very  radically  changed  at  that.  We  have 
given  the  people  something  so  vast  and  complicated 
to  (\()  in  asking  them  to  select  all  the  officers  of  govern- 
ment that  they  cannot  do  it.  It  must  be  done  for  them 
by  professionals.  There  are  so  many  men  to  be  named 
for  office ;  it  is  futile  to  name  one  or  two  unless  you 
name  a  whole  ticket;  the  oftices  that  fill  a  ticket  are 
so  many  and  so  obscure  that  it  is  impossible  the  thing 
6  73 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

should  be  done  informally  and  offhand  by  direct,  un- 
assisted popular  choice.  There  must  be  a  preliminary 
process  of  selection,  of  nomination,  of  preparing  the 
ticket  as  a  whole,  unless  there  is  to  be  hopeless  confu- 
sion, names  put  up  at  haphazard  and  nobody  elected  by 
a  clear  majority  at  the  end.  The  machine  is  as  yet  an 
indispensable  instrumentality  of  our  politics. 

Public  opinion  in  the  United  States  was  never 
better  informed,  never  more  intelligent,  never  more 
eager  to  make  itself  felt  in  the  control  of  government 
for  the  betterment  of  the  nation  than  it  is  now ;  and 
yet,  I  venture  to  say,  it  was  never  more  helpless  to 
obtain  its  purposes  by  ordinary  and  stated  means.  It 
has  to  resort  to  convulsive,  agitated,  almost  revolu- 
tionary means  to  have  its  way.  It  knows  what  it 
wants.  It  wants  good  men  in  office,  sensible  laws  ad- 
justed to  existing  conditions,  conscience  in  affairs  and 
intelligence  in  their  direction.  But  it  is  at  a  loss  how 
to  get  these.  It  flings  itself  this  way  and  that,  fright- 
ens this  group  of  politicians,  pets  that,  hopes,  protests, 
demands,  but  cannot  govern. 

In  its  impatience  it  exaggerates  the  inefficiency  and 
bad  morals  of  its  governments  very  grossly  and  is  very 
unfair  to  men  who  would  serve  it  if  they  could,  who 
do  serve  it  when  they  can,  but  who  are  caught  in  the 
same  net  of  complicated  circumstances  in  which  opinion 
finds  itself  involved.  There  is  no  just  ground  for  be- 
lieving that  our  legislative  and  administrative  bodies 
are  generally  corrupt.  They  are  not.  They  are  made 
up  for  the  most  part  of  honest  men  who  are  without 

74 


THE  ISSUES  OF  REFORM 

leadership  and  without  free  opportunity ;  who  try  to 
understand  the  pubhc  interest  and  to  devise  measures 
to  advance  it,  but  who  are  subordinate  to  a  poHtical 
system  which  they  cannot  dominate  or  ignore.  The 
machinery  of  the  bodies  to  which  they  belong  is  in- 
organic, as  decentralized  as  our  elective  processes 
would  lead  one  to  expect.  No  one  person  or  group 
of  persons  amongst  them  has  been  authorized  by 
the  circumstances  of  their  election  to  lead  them  or 
to  assume  responsibility  for  their  programme  of 
action.  They  therefore  parcel  out  initiatixe  and  re- 
sponsibility in  conformity  with  the  obvious  dictates 
of  the  system.  They  put  their  business  in  the 
hands  of  committees — a  committee  for  each  sub- 
ject they  have  to  handle — and  give  each  of  their  mem- 
bers a  place  upon  some  committee.  The  measures  pro- 
posed to  them,  therefore,  come  from  the  four  cpiarters 
of  heaven,  from  members  big  and  little,  known 
and  unknown,  but  never  from  any  responsible 
source.  There  can  be  neither  consistency  nor  con- 
tinuity in  the  policies  they  attempt.  What  they  do 
cannot  be  v/atched,  and  it  cannot  be  itself  organized 
and  made  a  whole  of.  There  is  so  much  of 
it  and  it  is  so  miscellaneous  that  it  cannot  be  debated. 
The  individual  member  must  do  the  best  he  can  amidst 
the  confusion.  He  has  only  an  occasional  part  and 
opportunity. 

He  is  controlled,  as  a  matter  of  fact,  from  out-of- 
doors — not  by  the  views  of  his  constituents,  but  by  a 
party  organization  which  is  intended  to  hold  the  hetero- 

75 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

geneous  elements  of  our  extraordinary  political  system 
together. 

When  public  opinion  grows  particularly  restless 
and  impatient  of  our  present  party  organization,  it  is 
common  to  hear  it  defended  by  the  argument  that 
parties  are  necessary  in  the  conduct  of  a  popular  gov- 
ernment; and  the  argument  can  be  sustained  by  very 
sound  and  eloquent  passages  out  of  Burke  and  many 
another  public  man  of  the  English-speaking  peoples, 
who  has  been  below  the  surface  of  affairs  and  convinced 
us  of  the  real  philosophy  of  our  form  of  government ; 
but  the  argument  is  quite  aside  from  the  point.  Of 
course  parties  are  necessary.  They  are  not  only  neces- 
sary but  desirable,  in  order  that  conviction  upon  great 
public  questions  may  be  organized  and  bodies  of  men 
of  like  opinion  and  purpose  brought  together  in  effec- 
tive and  habitual  cooperation.  Successful,  orderly 
popular  government  is  impossible  without  them.  But 
the  argument  for  our  own  particular  organization  of 
parties  is  quite  another  matter.  That  organization  is 
undoubtedly  necessary  in  the  circumstances,  but  you 
cannot  prove  its  necessity  out  of  Burke  or  any  other 
man  who  made  permanent  analysis  of  liberty.  We 
could  have  parties  without  organizing  them  in  this  par- 
ticular way.  There  have  been  parties  in  free  govern- 
ments time  out  of  mind  and  in  many  parts  of  the 
world,  but  never  anywhere  else  an  organization  of 
parties  like  our  own. 

And  yet  that  organization  is  for  the  time  being 
necessary.    It  centers,  as  everybody  knows,  in  the  nom- 

76 


THE  ISSUES  OF  REFORM 

inating  machinery.  There  could  be  no  party  organiza- 
tion if  our  elective  system  were  literally  carried  out 
as  it  was  intended  to  be,  by  the  actual  direct  and  in- 
formal selection  of  every  officer  of  government,  not  by 
party  agents  or  leaders,  but  by  the  scattered  voters  of 
the  thousand  neighborhoods  of  a  vast  country.  It  was 
necessary  to  devise  some  machinery  by  which  these  in- 
numerable choices  should  be  coordinated  and  squared 
with  party  lines.  It  was  a  huge  business  and  called 
for  a  compact  and  efficient  organization. 

Moreover,  there  was  more  than  the  process  of 
selection  to  be  overseen  and  directed.  Students  of  our 
political  methods  have  not  often  enough  brought  into 
their  reckoning  the  great  diversity  of  social  and  eco- 
nomic interest  and  development  that  has  existed 
among  the  different  sections  and  regions  of  this  vari- 
ous country,  which  even  yet  shows  every  stage  and 
variety  of  growth  and  make-up  and  an  extraordinary 
mixture  of  races  and  elements  of  population.  It  has 
been  necessary  to  keep  this  miscellaneous  body  together 
by  continual  exterior  pressure,  to  give  it  a  common 
direction  and  consciousness  of  purpose  by  sheer  force 
and  organization,  if  political  action  were  not  to  become 
hopelessly  confused  and  disordered.  It  was  not  con- 
scious of  any  immediate  solidarity  of  interest  or  ob- 
ject. It  might  have  broken  up  into  a  score  ot  groups 
and  coteries.  We  might  have  had  more  parties  than 
France,  as  many  sections  of  political  opinion  as  there 
were  distinctly  marked  regions  of  population  and  de- 
velopment.    Party  interest  has  been  kept  alive,  party 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

energy  stimulated,  by  entrusting  to  local  agents  and 
leaders  the  duty  of  seeing  to  it  that  systematic  party 
nominations  were  regularly  made  and  urged  upon  the 
voters  by  organized  campaigns,  whether  there  were  any 
natural  reason  or  not  why,  in  any  given  locality,  this 
party  or  that  should  be  preferred ;  and  national  parties 
have  been  pieced  together  out  of  these  local  fragments. 
The  creation  of  the  parts  was  necessary  to  the  creation 
of  the  whole.  I  do  not  know  how  else  coordinated 
parties  could  have  been  made  out  of  such  heterogene- 
ous materials  and  such  diversified  interests. 

The  result  has  been  that  the  nominating  machinery 
has  become  the  backbone  of  party  organization.  By 
it  local  leaders  are  rewarded  with  influence  or  office, 
are  kept  loyal,  watchful  and  energetic.  By  it  national 
majorities  are  pieced  together.  If  one  goes  back  to  the 
source  of  this  matter,  therefore,  it  is  easy  to  see  that 
the  nominating  machine  was  no  barnacle,  but  a  natural 
growth,  the  natural  fruit  of  a  system  which  made  it 
necessary  to  elect  every  officer  of  government.  The 
voter  has  not  the  leisure  and,  therefore,  has  not  the 
knowledge  for  the  difficult  and  intricate  business.  He 
cannot  organize  a  government  every  year  or  two,  make 
up  its  whole  personnel,  apply  its  punishments  and  re- 
wards, effect  its  dismissals  and  promotions.  Neither 
is  there  any  officer  or  any  group  of  officers  of  the  gov- 
ernment itself  who  can  organize  it  for  him,  for  no 
officer  has  the  legal  authority.  The  structure  of  the 
government  is  disintegrated  by  the  law  itself,  so  far 
as  its  personnel  is  concerned.     The  constitutions  and 

78 


THE  ISSUES  OF  REFORM 

statutes  by  whicli  the  officers  are  created  endeavor,  of 
course,  lo  integrate  their  functions ;  but  they  disinte- 
grate their  personnel  by  making  each  officer  the  direct 
choice  of  the  voters.  The  only  possible  means  of  in- 
tegration lies  outside  governments,  therefore,  and  is 
extra-legal.  It  is  the  nominating  machine.  The  ma- 
chine  applies  the  necessary  discipline  of  administration 
and  keeps  the  separately  elected  officers  of  one  mind  in 
the  performance  of  their  duties — loyal  to  an  exterior 
organization. 

The  punishment  it  inflicts  is  definitely  and  clearly 
understood.  It  will  not  renominate  any  man  who 
when  in  office  has  been  disobedient  to  party  commands. 
It  can  in  effect  dismiss  from  office.  Any  one  who 
wishes  to  remain  in  public  life,  at  any  rate  in  the 
smaller  and  less  conspicuous  offices  within  the  gift  of 
the  managers,  must  keep  in  their  good  graces.  Inde- 
pendence offends  the  machine  deeply,  disobedience  it 
will  not  tolerate  at  all.  Its  watchfulness  never  flags; 
its  discipline  is  continuous  and  effective.  It  is  the  chief 
instrument  of  party  government  under  our  system  of 
elections. 

Thus  have  we  necessitated  the  setting-up  outside 
the  government  of  what  we  were  afraid  ourselves  to 
set  up  inside  of  it:  concentrated  power,  administrative 
discipline,  the  authority  to  appoint  and  dismiss.  For 
the  power  to  nominate  is  virtually  the  power  to  ap- 
point and  to  dismiss,  as  Professor  Ford  has  pointed  out 
in  his  lucid  and  convincing  "  Rise  and  Growth  of 
American  Politics."     It  is  exercised  by  the  bosses,  iri- 

79 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

stead  of  by  responsible  officers  of  the  government — by 
the  men  who  have  charge  of  the  nominating  machin- 
ery;  men  who  are  themselves  often  entirely  outside  the 
government  as  legally  constituted,  hold  no  office,  do 
not  ask  the  people  for  their  suffrage,  and  are  picked 
out  for  their  function  by  private  processes  over  whidi 
the  people  have  no  control  whatever.  They  are  private 
citizens  and  exercise  their  powers  of  oversight  and 
management  without  any  public  invitation  of  any  kind. 
Just  because  there  are  innumerable  offices  to  be  filled 
by  election,  just  because  there  are  long  and  elaborate 
tickets  to  be  made  up,  just  because  it  needs  close  and 
constant  attention  to  the  matter  to  perform  the  duty  of 
selection  successfully — as  careful  and  constant  atten- 
tion as  the  superintendent  of  a  great  business  or  the 
head  of  a  great  government  bureau  factory,  his  office, 
or  his  bureau — it  cannot  possibly  be  done  by  the  voters 
as  a  body.  It  requires  too  much  knowledge  and  too 
much  judgment,  bestowed  upon  little  offices  without 
number  as  well  as  upon  great.  No  officer  of  the  gov- 
ernment is  authorized  to  appoint  or  select.  Party 
managers  must  undertake  it,  therefore,  who  are  not 
officers  of  the  government;  and  their  nominations  are 
virtual  appointments  if  they  belong  to  the  successful 
party.  The  voters  only  choose  as  between  the  selec- 
tions, the  appointees,  of  the  one  party  boss  or  the  other. 
It  is  out  of  the  question  for  them  to  make  independent 
selections  of  their  own. 

If  this  machine,  thus  bossed  and  administered,  is 
an  outside  power  o\er  which   the  voter  has  no  con- 

80 


THE  ISSUES  OF  REFORM 

trol — which  he  can  defeat  only  occasionahy,  when,  in 
a  fer\or  of  reform,  he  prefers  the  canchdates  of  some 
temporary  amateur  machine  (that  is,  nominating  ap- 
paratus) set  up  by  some  vohmteer  "  committee  of  one 
hundred  "  which  has  undertaken  a  rescue — it  is  the 
system  which  is  to  blame,  not  the  politicians.  Some- 
body, amateurs  or  professionals,  must  supply  what  they 
supply.  We  have  created  the  situation  and  must  either 
change  it  or  abide  by  its  results  with  such  patience  and 
philosophy  as  we  can  command. 

There  can  be  no  mistaking  the  fact  that  we  are  now 
face  to  face  with  political  changes  which  may  have  a 
\ery  profound  effect  upon  our  political  life.  Those 
who  do  not  understand  the  impending  change  are 
afraid  of  it.  Those  who  do  understand  it  know  that 
it  is  not  a  process  of  revolution,  but  a  process  of  restor- 
ation rather,  in  which  there  is  as  much  healing  as 
hurt.  There  are  strain  and  peril,  no  doubt,  in  every 
process  of  change,  but  the  ciiief  peril  comes  from 
undertaking  it  in  the  wrong  temper.  It  lies  not  in  the 
change  itself  so  much  as  in  the  method  of  some  of 
those  who  promote  it.  It  is  a  noteworthy  circumstance 
that  in  proportif)n  as  the  people  of  the  country  come 
to  recognize  what  it  is  that  renders  them  uneasy  and 
what  it  is  that  is  proposed  by  way  of  reformation  they 
lose  their  fear  and  take  on  a  certain  irresistible  enthu- 
siasm. 

The  American  people  are  naturally  a  conservative 
people.  They  do  not  wish  to  touch  the  stable  founda- 
tions of  their  life;  they  have  a  reverence  for  the  rights 

8i 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

of  property  and  the  rights  of  contract  which  is  based 
upon  a  long  experience  in  a  free  Hfe,  in  which  they 
have  been  at  liberty  to  acquire  property  as  they  pleased 
and  bind  themselves  by  such  contracts  as  suited  them. 
No  other  people  have  ever  had  such  freedom  in  the 
establishment  of  personal  relationships  or  property 
rights.  They  do  not  mean  to  lose  this  freedom  or  to 
impair  any  rights  at  all,  but  they  do  feel  that  a  great 
many  things  in  their  economic  life  and  in  their  politi- 
cal action  are  out  of  gear.  They  have  been  cheated 
by  their  own  political  machinery.  They  have  been 
dominated  by  the  very  instrumentalities  which  they 
themselves  created  in  the  field  of  industrial  action.  The 
liberty  of  the  individual  is  hampered  and  impaired. 
They  desire,  therefore,  not  a  revolution,  not  a  cutting 
loose  from  any  part  of  their  past,  but  a  readjustment 
of  the  elements  of  their  life,  a  reconsideration  of  what 
it  is  just  to  do  and  equitable  to  arrange  in  order  that 
they  may  be  indeed  free,  may  indeed  make  their  own 
choices  and  live  their  own  life  undominated,  unafraid, 
unsuspicious,  confident  that  they  will  be  served  by  their 
public  men  and  that  the  open  processes  of  their  govern- 
ment will  bring  to  them  justice  and  timely  reform. 

What  we  are  witnessing  now  is  not  so  much  a  con- 
flict of  parties  as  a  contest  of  ideals,  a  struggle  between 
those  who,  because  they  do  not  understand  what  is 
happening,  blindly  hold  on  to  what  is  and  those  who, 
because  they  do  see  the  real  questions  of  the  present 
and  of  the  future  in  a  clear,  revealing  light,  know 
that  there  must  be  sober  change ;  know  that  progress, 


THE  ISSUES  OF  REFORM 

none  the  less  active  and  determined  because  it  is  sober 
and  just,  is  necessary  for  the  maintenance  of  our  insti- 
tutions and  the  rectification  of  our  life.  In  both  the 
great  national  parties  there  are  men  who  feel  this 
ardor  of  progress  and  of  reform,  and  in  both  parties 
there  are  men  who  hold  back,  who  struggle  to  restrain 
change,  who  do  not  understand  it  or  who  have  reason 
to  fear  it.  Undoubtedly  the  present  moment  ofYers  a 
greater  and  larger  opportunity  to  the  Democratic  party 
than  to  the  Republican  party;  but  this  is  not  because 
there  are  not  men  in  the  Republican  party  who  have 
devoted  their  whole  intelligence  and  energy  to  neces- 
sary reform,  but  because  the  Democratic  party  as  a 
whole  is  freer  to  move  and  to  act  than  the  Republican 
is  and  is  held  back  by  a  smaller  and  weaker  body  of 
representatives  of  the  things  that  are  and  have  been. 
We  generally  sum  up  \\hat  we  mean  by  the  reac- 
tionary forces  by  speaking  of  them  as  embodied  in 
the  interests.  By  that  we  do  not  mean  the  legitimate 
but  the  illegitimate  interests,  those  which  have  not 
adjusted  themselves  to  the  public  interest,  those  which 
are  clinging  to  their  vested  rights  as  a  bulwark  against 
the  adjustment  which  is  absolutely  necessary  if  they 
are  to  be  servants  and  not  masters  of  the  public.  The 
chief  political  fact  of  the  day  is  that  the  Republican 
party  is  more  closely  allied  with  these  interests  than 
the  Democratic  party.  This  circumstance  constitutes 
the  opportunity  of  the  Democrats.  They  are  free  to 
act  and  to  mo\'e  in  the  right  direction  if  they  will  but 
accept    the    responsibility    and    the    leadership.      The 

83 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

Democratic  party  is  more  in  sympathy  with  the  new 
tendencies  than  the  Repubhcan.  Its  free  forces  are 
the  forces  of  progress  and  of  popular  reform. 

Both  parties  are  of  necessity  breaking  away  from 
the  past,  whether  they  will  or  not,  because  our  life  has 
broken  away  from  the  past.  The  life  of  America  is 
not  the  life  it  was  twenty  years  ago.  It  is  not  the  life 
it  was  ten  years  ago.  We  have  changed  our  economic 
conditions  from  top  to  bottom,  and  with  our  economic 
conditions  has  changed  also  the  organization  of  our 
life.  The  old  party  formulas  do  not  fit  the  present 
problems.  The  old  cries  of  the  stump  sound  as  if  they 
belonged  to  a  past  age  which  men  have  almost  forgot- 
ten. The  things  which  used  to  be  put  into  the  party 
platforms  of  ten  years  ago  would  sound  antiquated 
now.  You  will  note,  moreover,  that  the  political  audi- 
ences which  nowadays  gather  together  are  not  partisan 
audiences.  They  are  made  up  of  all  elements  and 
come  together,  not  to  hear  parties  denounced  or 
praised,  but  to  hear  the  interests  of  the  nation  discussed 
in  new  terms — the  terms  of  the  present  moment.  We 
have  so  complicated  our  machinery  of  government, 
we  have  made  it  so  difficult,  so  full  of  ambushes  and 
hiding-places,  so  indirect,  that  instead  of  having  true 
representative  government  we  have  a  great  inextricable 
jungle  of  organization  intervening  between  the  people 
and  the  processes  of  their  government;  so  that  by 
stages,  without  intending  it,  without  being  aware  of  it, 
we  have  lost  the  purity  and  directness  of  representative 
government.     What  we  must  devote  ourselves  to  now 

84 


THE  ISSUES  OF  REFORM 

is,  not  to  upsetting  our  institutions,  but  to  restoring 
them. 

Undoubtedly  we  should  avoid  excitement  and 
should  silence  the  demagogue.  The  man  with  power, 
but  without  conscience,  could,  with  an  eloquent  tongue, 
if  he  cared  for  nothing  but  his  own  power,  put  this 
whole  country  into  a  flame,  because  the  whole  country 
believes  that  something  is  wrong  and  is  eager  to  fol- 
low those  who  profess  to  be  able  to  lead  it  away  from 
its  difficulties.  But  it  is  all  the  more  necessary  that 
we  should  be  careful  who  are  our  guides.  The  pro- 
cesses we_^re_engag£dJLD_are,-fuudaiU£_ntally  conser^3- 
tivej3rocesses.__I f  your  tree  is  diseased_r^is  no  revolu.- 
tion  toj;^estore  to  it  the  puritv  of  its_saa_:to_xenew  jhg 
soil  that  sustains  it,  to  re-establish_Jh^^onditions  ._Qf 
its  health.  Thatjs_a_^rocess_of_life.  of  renewal,  of  rg.- 
demption.  There  is  no  groumlJoJl-Mg-inuiherefore, 
\\''e  are  bent  upon  a  perfectly-defill'te  _programme, 
whichis^one  of  health  and.  renevyaL 

Let  us  ask  ourselves  very  frankJY  what  it  is  that 
needs  to  be  corrected.  _To  sum  it  all  up  in  on£_S£iu 
1^nce^_jt_js_the_control  of_4)olitics  and  of  our  life  by 
irreat  combinations  of  wealth.  Men  sometimes  talk  as 
if  it  were  wealth  we  were  afraid  of,  as  if  we  were 
jealous  of  the  accumulation  of  great  fortunes.  Noth- 
ing of  the  kind  is  true.  America  has  not  the  slightest 
jealousy  of  the  legitimate  accumulation  of  wealth. 
Everybody  knows  that  there  are  hundreds  and  thou- 
sands of  men  of  large  means  and  large  economic  power 
who  have  come  by  it  all  not  only  perfectly  legitimately, 

85 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

but  in  a  way  that  deserves  the  thanks  and  admiration 
of  the  communities  they  liave  served  and  developed. 
But  everybody  knows  also  that  some  of  the  men  who 
control  the  wealth  and  have  built  up  the  industry  of  the 
country  seek  to  control  politics  and  also  to  dominate 
the  life  of  common  men  in  a  way  in  which  no  man 
should  be  permitted  to  dominate. 

In  the  firs^  place,  there  is  the  notorious  operation 

of  thejDi-partisaj;  polixkiljll^^ 

chine  which  does  not  rejDresent  party  principle_cif_any- 
kind,  but  which  is  willing  tCL-£n te r_intQ_anyL-iiombi na= 
tion,  \vith  whateverigroiip  of  persons  or  of  pohticians, 
to  control  the  offices  of  localities  and  of  states  and  of 


the^  nation  itself  in  order  to_ji3aLiitain^tJie_^powejL^ 
those  who  direcHt__ThisjTiacjbineJs_si^^        with  itj^ 
funds  by  the  menjadlQJUSe  it  iiT_order  to  protect  theiTi; 
seTves^against  legislation  which  they  do  not  desire  and  ^ 
in  order  to  obtain  thejegislation  wliich  is  necessaryfor, 
thejjrosecution  of  their  purposes. 

The  niethods  of  our  legislatures  make  the^apgra- 
tions  of  such  machines^ easy  and  convenient.     For  very. 
little  of  our  legislation  is  formed  and  effected  bj-  open 

debate  upon  the  floor. AlnTOst  all  of  it  is  framed  Jn , 

lawyers'  offices,  discussed  in  committee  rooms,  passed 
without  debate.  Bills  that  the  machine  and  its  backers 
do  not_desire  are  smothered  iiLcommittee_;  measures 
which  they  do  desire  are  Jjrought  out^  and  hurried 
through  their  passage^__Jt  hapjDens  .ag;ain_and  _agaiii 
that  great  groups  of  such  bills  are  rushed_  through, 
p^fhe  hurried  hours  that  mark  the  close^  of  the  Jegi&i. 
'  86 


THE  ISSUES  OF  REFORM 

lative  sessions,  when  every  one  is  withheld  fronudgi- 
lance  by  fatigue  anTrTvHenrTt  is  possTble_t^o  do  secrel, 
things. 


When  we  stand  in  the  presence  of  these  things  and 
see  how  complete  and  sinister  their  operation  has  been 
we  cry  out  wdth  no  little  truth  that  we  no  longer  have 
representative  government. 

Among  the  remedies  proposed  in  recent  years  have 
been  the  initiative  and  referendum  in  the  field  of  legis- 
lation and   the   recall   in   the   field   of   administration. 
These  measures  are  su])posed  to  be  characteristic  oj 
the  most  radical  prograinntes,  aiid  they  are  supposed 
to  be  meant  to  change  thevervj:haracter  of  our  goy- 
ernment.     They  have  no  siich  purpose.     Their^jnteu:;. 
tion  is  to  restore,  not  to  destroy,  representative  govr 
ernment.      It  must  be   remembered  by   every  _candi£L> 
man  w^ho  discusses  these  matters  that  we  are  contras,t- 
ing  the  operation  of  the  initiative  and  the  refer^nduiB^ 
not  with_tlie  representative  governjTTeiit_wlTich  we  pos- 
sess in  theory  and  which  we  have  long  persuaded  our^ 
selves  that  w^e  possessed  in  fact,  but  with_theactual  state 
of  affairs,  with  legislative  processes  w^hich  are  carried 
on  in  secret,  responding  to  the  impulse  of  subsidiziid. 
machines  and  carried  through  by  men  whose_iinha.]ipi- 
ness__it_js^  to  realize  that  they  are  not  their  own  mas:^, 
ters.  but  puppets  in  a  game.. 

If_we_f£]t_Jhat  w^e  had_genuine  represeritative_gov- 
ernment  in  our  state  legislaturesjio^one  would  propose 
t he  initiative  ^rjreferendum  in  America_;__jrhey  are 
being  proposed  now  asa  means  of  bringing  our  j;epre- 

87 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

sentatives  back  to  the  consciousness  that  what JJiey  a_re 
TjoundTi n  d ntyjrKTTn  mere  policy  to  dojs^to_j:e2resei2t 
the  so\TiTi^nj3eopl£jw1ionTrthe^^ 
not  the~private  interests  which  creep  into  their^jcmiiLr 
^elsbyjway^ofjiiachine  orders  atid  committee^ confejl- 
ences.     The  mo_sLardent_and  successful  advocates  of. 
The  initiative  and  referendum  regard  thenTi_aj^ajobering 
'means  of  obtainuTg^genuine  representati^e_jic^tign_im 
tHe'part  of  legislative  bQilie.s^Tliey  da.jaotLJ»e^«-4a 
sefiiTyt h i ng  aside.    _Ihey_ja3ean_tQ^.r£StQre-aiid^t:€-ift- 
vigora t e ^  r atlier . 

The  recall   is  a  means  of  administrative  control. 
If  properly  regulated  and  devised  it  is  a  means  of  re- 
storing to  administrative  officials  what  the  initiative 
and  referendum  restore  to  legislators — namely,  a  sense 
of  direct  responsibility  to  the  people  wdio  chose  them. 
The  recall  of  judges  is  another  matter.    Judges  are 
not  lawmakers.     They  are  not  administrators.     Their 
duty  is  not  to  determine  what  the  law  shall  be,  but  to 
determine  what  the  law  is.     Their  independence,  their 
sense  of  dignity  and  of  freedom,  is  of  the  first  conse- 
quence to  the  stability  of  the  state.     To  apply  to  them 
the  principle  of  the  recall  is  to  set  up  the  idea  that 
determinations   of  what   the  law   is  must   respond  to 
popular  impulse  and  to  popular  judgment.     It  is  suf- 
ficient that  the  people  should  have  the  power  to  change 
the  law  when  they  will.     It  is  not  necessary  that  they 
should  directly  influence  by  threat  of  recall  those  who 
merely  interpret  the  law  already  established.    The  im- 
portance and  desirability  of  the  recall  as  a  means  of 

88 


THE  ISSUES  OF  REFORM 

administrative  control   onght   not   to   be   obscured   by- 
drawing  it  into  this  other  and  very  different  field. 

The  second  power  we  fear  is  the  control  of  onr  life 
through  the  vast  privileges  of  corporations  which  use 
the  wealth  of  masses  of  men  to  sustain  their  enter- 
prise. It  is  in  connection  with  this  danger  that  it  is 
necessary  to  do  some  of  our  clearest  and  frankest 
thinking.  It  is  a  fundamental  mistake  to  speak  of 
the  privileges  of  these  great  corporations  as  if  they 
fell  wdthin  the  class  of  private  right  and  of  private 
property.  Those  who  administer  the  affairs  of  great 
joint-stock  companies  are  really  administering  the 
'  property  of  communities,  the  property  of  the  whole 
mass  and  miscellany  of  men  who  have  bought  the  stock 
or  the  bonds  that  sustain  the  enterprise.  The  stocks 
ami  the  bonds  are  constantly  changing  hands.  There 
is  no  fixed  partnership.  Moreover,  managers  of  such 
corporations  are  the  trustees  of  moneys  which  they 
themselves  never  accumulated,  but  which  have  been 
drawn  together  out  of  private  savings  here,  there,  and 
everywhere. 

What  is  necessary  in  order  to  rectify  the  whole 
mass  of  business  of  this  kind  is  that  those  who  con- 
trol it  should  entirely  change  their  point  of  view. 
They  .are  trustees,  not  masters,  of  private  property, 
not  only  because  their  power  is  derived  from  a  multi- 
tude of  men,  but  also  because  in  its  investments  it 
affects  a  multitude  of  men.  It  determines  the  develop- 
ment or  decay  of  communities.  It  is  the  means  of 
lifting  (jr  depressing  the  life  of  the  whole  country. 
7  89 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

They  must  regard  themselves  as  representatives  of  a 
public  power.  There  can  be  no  reasonable  jealousy 
of  public  regulation  in  such  matters,  because  the  op- 
portunities of  all  men  are  affected.  Their  property  is 
everywhere  touched,  their  savings  are  everywhere  ab- 
sorbed, their  employment  is  everywhere  determined, 
by  these  great  agencies.  What  we  need,  therefore,  is 
to  come  to  a  common  view  which  will  not  bring  antag- 
onisms, but  accommodations.  The  programmes  of  par- 
ties must  now  be  programmes  of  enlightenment  and  re- 
adjustment, not  revolutionary  but  restorative.  The 
processes  of  change  are  largely  processes  of  thought, 
but  unhappily  they  cannot  be  effected  without  becom- 
ing political  processes  also,  and  that  is  the  deep  respon- 
sibility of  public  men.  What  we  need,  therefore,  in 
our  politics  is  an  instant  alignment  of  all  men  free  and 
willing  to  think  and  to  act  without  fear  upon  their 
thought. 

This  is  just  as  much  a  constructive  age  in  politics, 
therefore,  as  was  the  great  age  in  which  our  federal 
government  was  set  up,  and  the  man  who  does  not 
awake  to  the  opportunity,  the  man  who  does  not  sacri- 
fice private  and  exceptional  interests  in  order  to  serve 
the  common  and  public  interest,  is  declining  to  take 
part  in  the  business  of  an  heroic  age.  I  am  sorry  for 
the  man  who  is  so  blind  that  he  does  not  see  the  oppor- 
tunity, and  I  am  happy  in  the  confidence  that  in  this 
era  men  of  strength  and  of  principle  will  see  their 
opportunity  of  immortal  service. 

I  am  not  one  of  those  who  wish  to  break  connec- 

90 


THE  ISSUES  OF  REFORM 

tions  with  the  past,  nor  am  I  one  of  those  who  wish 
change  for  the  mere  sake  of  variety.  The  only  men 
who  do  that  are  the  men  who  want  to  forget  some- 
thing, the  men  who  filled  yesterday  with  something 
they  wonld  rather  not  recall  to-day.  Change  is  not 
interesting  unless  it  is  constructive,  and  it  is  an  age 
of  construction  that  must  put  fire  into  the  blood  of 
anv  man  worthv  of  the  name. 


CHAPTER    IV 


THE    DEVELOPMENT    OF    DIRECT    LEGISLATION 
IN    AMERICA  ^ 


The  referendum  is  an  established  principle  in 
American  political  life.  It  is  not  a  new-fangled  de- 
vice, as  it  is  characterized  by  opponents.  Apart  from 
its  state  use  in  the  adoption  or  amendment  of  state  con- 
stitutions and  on  other  important  subjects,  the  number 
and  variety  of  questions  thus  referred  in  cities  is  so 
large  that  one  who  examines  into  the  history  of  his 
own  and  of  neighboring  cities  will  probably  be  some- 
what amazed  as  to  their  frequency  and  importance. 
Aside  from  its  best-known  use  to  decide  vexatious 
topics  like  local  option  and  prohibition,  the  referendum 
is  used  on  financial  questions  like  issuing  bonds,  and 
on  undertaking  new  enterprises,  like  schools,  hospitals, 
public  buildings,  parks,  boulevards,  sewers,  w^ater- 
works,  lighting  plants,  as  well  as  on  the  most  funda- 
mental questions  like  the  incorporation  of  cities  and 
the  acceptance  of  their  charters.  The  constitution  of 
Massachusetts,    by   amendment    adopted    as    early    as 

^  By  Robert  Treat  Paine.  Reprinted  from  the  Proceedings  0/ 
the  National  Municipal  League  (1908). 

92 


DIRECT   LEGISLATION   IN   AMERICA 

1 82 1,  forbids  the  legislature  to  incorporate  any  town 
as  a  city  except  with  the  consent  of  a  majority  vote 
of  the  citizens  of  that  town. 

The  direct  legislation,  however,  to  which  we  are 
directing  our  attention,  introduces  the  distinction  or 
differentiation  in  that  the  people  themselves  determine, 
and  not  the  legislature  or  the  municipal  legislative  au- 
thorities, whether  or  not  questions  shall  be  referred 
through  the  referendum  to  a  popular  decision.  The 
referendum  is  not  compulsory :  it  need  not  be  used  un- 
less there  is  a  positive  demand  for  it — a  petition  signed 
by  a  fixed  number  or  percentage  of  the  voters  asking 
for  it.  Its  use  is  optional.  It  becomes  therefore  a 
true  people's  veto  to  be  used  when  occasion  requires 
in  the  judgment  of  the  people  whether  the  municipal 
legislative  authorities  so  wish  or  not.  The  people 
thus  become  directly  sovereign  in  regard  to  the  acts 
of  their  own  agents  or  representatives.  Similarly  the 
initiative  takes  its  rise  from  an  initial  action  by  the 
people  in  those  cases  where  their  representatives  ap- 
pear unwilling  to  act  in  accordance  with  the  supposed 
will  of  the  community.  The  authority  of  James  Bryce 
is  not  necessary  to  convince  Americans  that  the  gov- 
ernment of  their  cities  is  the  conspicuous  failure  in 
American  political  institutions. 

The  federal  system,  with  its  two  chambers  based 
on  the  theory  of  checks  and  balances,  has  been  found 
wanting.  Whether  or  not  it  sufTiced  for  earlier  days 
of  simpler  requirements  when  the  non-interference 
idea    of    government    prevailed    is    immaterial.     Our 

93 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

cities  to-day  face  problems  of  utmost  gravity,  arising 
not  only  out  of  the  great  increase  in  population,  but 
also  out  of  the  far  greater  demands  from  this  con- 
gested urban  population  which  asks  for  and  should 
be  granted  a  higher  standard  of  comforts  and  necessi- 
ties. Modern  civilization  therefore  requires  that  city 
governments  be  aggressive,  positive  forces  that  can 
grapple  with  and  solve  the  problems  as  they  arise  or 
are  foreseen. 

Unfortunately,  in  rather  marked  contrast  with 
modern  Europe  and  England,  our  cities  have  been 
mere  creatures  of  the  legislature  with  enumerated 
powers  limited  to  known  requirements.  Therefore 
every  new  task  has  involved  resort  to  the  legislature. 
Results  have  been  disastrous  both  in  enfeebling  the 
city's  self-reliance  and  civic  character,  and  in  leading 
to  an  undue,  injudicious  and  unjustifiable  interference 
by  the  state  authorities.  So  well  recognized  has  been 
this  evil  that  a  majority  of  the  state  constitutions  now 
forbid  the  legislatures  to  interfere  by  special  legisla- 
tion. Owing  however  to  the  legislative  device  of  clas- 
sification this  effort  has  been  but  partially  successful. 
In  the  West  a  remedy  has  been  sought  in  a  different 
direction,  through  the  constitutional  assertion  of  the 
independence,  more  or  less  complete,  of  the  cities  from 
the  legislature,  by  the  adoption  of  the  home-rule  char- 
ter system. 

In  1875  the  constitution  of  Missouri  was  the  first 
thus  to  be  amended  to  give  cities  of  over  100,000 
population,  that  is  St.  Louis  and  later  Kansas  City, 

94 


DIRECT  LEGISLATION   IN   AMERICA 

power  to  decide  upon  their  charters  by  a  vote  of  their 
own  citizens. 

CaHfornia  followed  with  a  constitutional  amend- 
ment in  1879,  but  provided  that  these  charters  after 
adoption  by  the  voters  must  be  submitted  to  the  leg- 
islature for  ratification  or  rejection  as  a  whole.  The 
popularity  of  this  move  is  evidenced  by  the  vote  in 
its  favor  of  114,617  to  42,076,  in  1892,  when  the 
minimum  limit  of  population,  after  a  previous  reduc- 
tion in  1887  to  10,000,  was  still  further  reduced  to 
3,400.  California  further  extended  the  power  of  cities 
over  their  charters  by  amending  article  XI,  section  8, 
of  the  constitution,  in  November,  1906,  so  as  to  pro- 
vide that  an  initiative  petition  of  fifteen  per  cent,  can 
compel  the  submission  to  a  popular  vote  at  a  regular 
municipal  election  of  any  proposed  charter  amend- 
ment. 

In  Oregon  the  constitutional  amendment  granting 
the  voters  of  every  city  and  town  power  to  enact  and 
amend  their  municipal  charters  was  adopted  on  an 
initiative  petition  from  the  people,  by  a  vote  of  52,567 
to  19,852  on  June  4,  1906. 

Washington,  Minnesota,  Colorado  and  Oklahoma 
have  carried  on  this  home-rule  movement.  In  Michi- 
gan the  constitutional  convention  inserted  a  home 
rule  section  in  the  new  constitution  which  was  voted 
on  and  carried  November  3,  1908. 

But  far  more  w^idespread  or  at  least  far  more  suc- 
cessful over  a  wider  stretch  of  territory  is  the  move- 
ment we  are   now  to  consider   for  more   direct  and 

95 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

popular  control  by  the  citizens  themselves  of  their 
municipal  affairs.  Both  theoretically  and  practically 
this  movement  appears  justified  in  its  aims.  It  gives 
the  best  promise  of  helping  the  ultimate  solution  of 
our  municipal  problems.  This  movement  is  either  ad- 
visory or  mandatory  in  its  operation.  The  advisory 
system  was  perhaps  the  easier  to  enact,  but  the  ten- 
dency of  late  has  been  strongly  towards  the  mandatory 
initiative  and  referendum. 

The  advisory  system  aims  to  secure  action  by  city 
authorities  in  conformity  with  the  popular  judgment 
through  milder  methods  than  direct  legislation.  The 
voters  are  allowed  to  suggest  or  to  express  their  opin- 
ion on  a  course  of  action  without  however  thereby 
enacting  such  legislation  or  ordinance.  Such  a  vote 
is  merely  advisory  in  character  and  leaves  the  city 
fathers  with  full  power  to  act  as  they  think  best, 
whether  it  be  in  accordance  with  or  against  the  wishes 
of  the  people.  Winnetka,  Illinois,  is  generally  given 
the  credit  for  devising  the  method  of  securing  a  popu- 
lar decision  of  important  questions  through  pledging 
candidates  before  their  election  to  permit  the  reference 
to  the  people  of  such  questions  when  petitioned  for. 
The  council  was  thus  induced  to  pass  an  ordinance 
providing  for  the  submission  to  the  voters  before  their 
passage  of  all  ordinances  for  franchises  or  for  bond 
issues  and  also  all  ordinances  for  which  fifty  voters 
may  have  petitioned  within  five  days  after  public  post- 
ing before  their  passage.  Geneva,  Illinois,  extended 
this  system  to  include,  in  addition  to  the  referendum, 

96 


DIRECT   LEGISLATION   IN   AMERICA 

the  advisory  initiative  on  any  public  question  when 
petitioned  for  by  ten  per  cent,  of  the  voters.  Candi- 
dates are  questioned  and  pledged  before  election  to 
follow  these  rules.   • 

This  method  has  been  followed  by  several  cities. 
Detroit,  on  June  17,  1902.  unanimously  adopted  rules 
of  procedure  by  which  a  petition  of  five  per  cent,  of 
the  voters  may  force  all  ordinances  granting  or  renew- 
ing public  utility  franchises,  which  have  passed  their 
third  reading  in  the  council,  to  a  popular  vote  at  the 
next  election,  and  also  any  other  measure  instructing 
the  officials.  A  home-rule  charter  had  been  declared 
unconstitutional  by  the  supreme  court,  thus  depriving 
the  city  of  the  right  granted  therein  for  a  referendum 
on  street  railway  franchises.  A  long-term  extension 
of  such  franchise  was  favored  by  a  majority  of  the 
council,  but  having  pledged  themselves  to  a  referen- 
dum while  candidates  for  office  a  spirited  demonstra- 
tion of  the  citizens  induced  them  to  pass  the  above  rule. 
The  proposal  to  extend  the  franchise  was  thereupon 
dropped  in  view  of  the  threatened  veto.  The  first  use 
in  Detroit  of  the  referendum  on  franchises  was  made 
November  6,  1906,  when  the  Detroit  United  Railway 
franchise  was  rejected  decisively — and  wisely  accord- 
ing to  the  Cizic  A^czus,  a  good  government  publication 
of  Detroit. 

Such  self-denying  council  rules  are  not,  however, 
either  permanent  or  self-enforcing.  A  two-thirds  vote 
may  suspend  them  at  any  time,  perhaps  when  needed 
most.    To  secure  their  continued  annual  adoption  may 

97 


THE  INITIATIVE,   REFERENDUM   AND    RECALL 

require  an  annual  pledging  campaign.  This  year's 
manual  of  Detroit  [1908]  does  not  contain  the  rule 
for  instructing  officials  through  the  initiative.  To 
guarantee  action  by  a  representative  government  in 
harmony  with  the  popular  will  presupposes  not  a  vol- 
untarily assumed  obligation  of  a  temporary  and  op- 
tional character,  but  an  obligation  of  superior  and  con- 
trollins:  force  embodied  in  the  fundamental  law  or 
charter. 

Grand  Rapids,  Michigan,  petitioned  the  legislature 
for  a  new  charter,  which  was  approved  June  6,  1905, 
granting  a  twelve  per  cent,  referendum  on  any  ordi- 
nance and  a  twelve  per  cent,  initiative  for  an  advisory 
vote  on  charter  amendments.  This  referendum  has 
been  used  twice,  once  to  approve  of  the  franchise 
granted  to  the  Muskegon  Power  Company,  and 
again  November  6,  1906,  to  reject  an  ordinance  pro- 
hibiting Sunday  shows,  6,895  to  6.281.  Under  the 
advisory  initiative  the  voters  have  twice  asked  for 
amendments  to  their  charter;  on  April  2,  1906,  voting 
for  an  advisory  initiative  on  ordinances  by  6,196  to 
1,736  and  for  the  recall  by  7,142  to  1,976;  and  on  No- 
vember 6,  1906,  voting  for  the  establishment  of  non- 
partisan municipal  elections  by  8,865  to  3,350.  Though 
this  question  carried  every  precinct  in  a  Republican 
city  and  the  total  vote,  12,215,  was  within  729  of  the 
total  cast  for  governor,  yet  the  Republican  legislature 
refused  to  grant  the  request;  as  it  also  refused  the 
other  requests.  It  is  stated  that  the  above  charter  pro- 
visions are  generally  considered  beneficial,  though  it 

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DIRECT   LEGISLATION   IN   AMERICA 

is  felt  that  the  enactment  of  charter  amendments 
should  be  compulsory  after  submission  to  and  approval 
by  the  electors. 

Buffalo,  under  the  general  welfare  clause  of  its 
charter,  adopted,  July  13,  1904,  a  provision  (chapter 
45,  of  the  city  ordinances),  which  is  still  in  force  and 
which  authorizes  the  submission  at  a  general  election 
of  any  questions  of  public  policy  to  obtain  the  opinion 
of  the  electors  thereon,  either  on  the  petition  of  five 
per  cent,  of  the  voters  or  upon  resolution  of  the  coun- 
cil. On  November  7,  1905,  such  an  advisory  initiative 
resulted  in  a  vote  of  7.767  to  1,979  in  favor  of  a  mu- 
nicipal electric  lighting  and  power  plant.  The  council 
took  no  action  to  carry  out  this  vote,  but  used  it  to 
obtain  somewhat  more  favorable  prices  from  the  ex- 
isting private  company.  On  November  3,  1908,  the 
advisory  initiative  asking  for  a  new  charter  with  the 
largest  possible  measure  of  home  rule  obtained  the  en- 
dorsement of  13,286  for,  to  4.346  against. 

In  Illinois  a  public-opinion  law  was  enacted  May 
4,  1901,  allowing  questions  to  be  referred  to  the  voters 
of  cities  for  an  expression  of  opinion  on  the  petition 
of  twenty-five  per  cent.  Chicago  has  made  effective 
use  of  this  authority,  voting  in  April,  1902,  for  direct 
primary  nominations  of  city  officers  by  140,860  to 
17,654,  and  on  April  5,  1904,  for  the  popular  election 
of  the  school  board  by  115,553  to  58,432.  Both  at 
these  elections  and  on  April  4,  1905,  April  3,  1906. 
and  April  2,  1907,  there  were  referenda  on  the  burning 
street-railway  issue.    The  question  has  been  too  promi- 

99 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

nent  throughout  the  country  during  all  these  years  to 
need  extended  comment.  The  first  votes  were  over- 
whelmingly in  favor  of  municipal  ownership  of  gas 
and  electric  lighting  plants,  as  well  as  of  the  street 
railways,  139,999  to  21,364,  and  142,826  to  27,998, 
respectively;  but  finally,  after  a  six  years'  struggle,  the 
people,  by  165,846  to  132,720,  accepted  on  April  2, 
1907,  the  council  ordinances  whereby  great  reforms 
were  promised  in  the  service  under  the  private  man- 
agement of  the  companies,  and  fifty-five  per  cent,  of 
the  net  profits  was  to  go  to  the  city  treasury. 

In  Canada  this  advisory  system  has  been  author- 
ized for  cities  by  general  provincial  law  in  British 
Columbia  June  21,  1902,  and  in  Ontario  June  27, 
1903.  In  Victoria  the  referendum  by-law  was  adopted 
by  the  council  December  15,  1902.  Either  the  council 
or  a  petition  of  ten  per  cent,  of  the  voters  may  send 
questions  to  the  annual  municipal  election  in  January 
for  obtaining  the  opinion  of  the  electors  upon  any 
question  affecting  the  public  welfare  or  any  proposed 
innovation  or  alteration  of  by-laws.  In  1903,  1907 
and  1908  the  eight-hour  day  for  city  employees,  the 
sale  of  liquors  by  retail  in  stores,  and  an  increased 
water  supply,  were  voted  on.  The  opinion  thus  ex- 
pressed by  the  electors  has  been  regarded  by  the  coun- 
cil as  a  mandate  for  legislation  in  accordance  there- 
with. 

In  Toronto  this  advisory  referendum  has  been 
used  for  questions  like  reducing  the  number  of  liquor 
licenses,  paying  salaries  to  the  aldermen,  and  exempt- 

ICO 


DIRECT  LEGISLATION  IN  AMERICA 

ing  dwellings  from  assessment  to  the  amount  of  seven 
hundred  dollars. 

Augusta,  Maine,  has  held  special  elections  from 
time  to  time  to  secure  the  opinion  of  the  people  when- 
ever the  importance  of  the  issue  has  seemed  sufficient 
to  warrant  such  an  election.  The  city  clerk  states  that 
the  authority  is  found  in  the  clause  of  the  city  charter, 
section  34,  which  provides  that  general  meetings  of 
the  citizens  may  be  held  to  consult  upon  the  general 
good  and  to  instruct  their  representatives  according  to 
the  right  secured  to  the  people  by  the  state  constitution 
— to  be  summoned  by  the  mayor  and  aldermen  upon 
the  requisition  of  thirty  voters. 

The  constitution  of  Massachusetts,  the  parent  state, 
contains  a  similar  provision  inserted  in  the  original 
document  of  1780  and  repeated  in  the  city  charters. 
In  the  smaller  cities,  where  the  capacity  of  a  hall  bears 
a  reasonable  relation  to  the  probable  number  of  voters 
expected  to  attend,  there  have  been  numerous  meet- 
ings to  decide  upon  various  important  matters,  but  it  is 
not  known  that  any  city  has  yet  adopted  Maine's  sensi- 
ble expedient  for  changing  a  huge  mass  meeting  into 
the  modern  method  of  booths  and  ballots. 

The  constitutions  of  thirteen  other  states  contain 
in  their  bill  of  rights  declarations  more  or  less  similar 
in  support  of  the  right  of  the  voters  to  give  instruc- 
tions :  Pennsylvania,  North  Carolina,  New  Hamp- 
shire, Vermont,  Tennessee,  Ohio,  Indiana,  Michigan, 
Arkansas,  California,  Oregon,  "Kansas  and  Nevada. 

In  Delaware  under  the  terms  of  the  law,  the  peo- 

lOI 


THE   INITIATIVE,   REFERENDUM    AND    RECALL 

pie  voted,  on  November  6,  1906,  on  the  question, 
"  Shall  the  general  assembly  provide  a  system  of  ad- 
visory initiative  and  referendum?"  Though  the  vote 
in  the  entire  state  was  more  than  eight  to  one  in  its 
favor,  the  system  was  not  authorized  by  the  following 
legislature,  w^hich,  however,  with  but  a  single  dissent- 
ing vote  in  the  senate,  did  establish  for  the  city  of 
Wilmington,  which  had  favored  the  proposition  by 
10,548  to  747,  a  local  initiative  without  the  referen- 
dum. A  petition  of  ten  per  cent,  carries  to  the  next 
election  any  question  relating  to  the  affairs  of  the  city 
for  an  expression  of  opinion  thereon.  If  it  receives  a 
majority  vote  and  is  within  the  corporate  powers  of 
the  city  government,  it  must  be  put  into  effect  without 
unreasonable  delay.  Any  member  of  the  council,  or  of 
a  commission,  who  neglects  or  refuses  to  perform  the 
duty  therein  imposed  commits  a  misdemeanor  punish- 
able by  fine,  removal  from  office,  and  ineligibility  to 
hold  office  for  five  years.  This  last  provision  should 
lessen  the  danger  of  representatives  refusing  to  carry 
out  the  people's  will ;  but  as  far  as  it  renders  the  action 
by  the  council  merely  an  obligatory  and  perfecting 
formality,  it  would  seem  to  approximate  practically  to 
the  system  of  direct  legislation. 

On  June  i,  1907,  at  the  city  election,  five  ques- 
tions were  submitted  to  the  people :  Shall  the  legisla- 
ture be  memorialized  for  a  home  rule  government  for 
Wilmington  with  the  initiative  and  the  referendum 
(8,786  to  813)  and  for  the  New  York  system  of  as- 
sessing real  estate  (9,037  to  757)  ?     Shall  ordinances 

102 


DIRECT  LEGISLATION   IN   AMERICA 

be  passed  to  require  the  publication  of  a  complete  finan- 
cial statement  (8,324  to  569),  and  the  bonding  of  as- 
sessors and  collectors  (8,346  to  663),  and  the  observ- 
ance by  the  railroad  companies  using  the  streets  of 
their  franchise  requirements  for  the  repairs  of  the 
streets  and  improvements  of  their  cars  (8,302  to  504)  ? 

The  memorial  for  direct  legislation  will  be  pre- 
sented to  the  legislature  when  it  convenes  in  December, 
but  the  vote  emphasizes  the  desire  of  the  community 
for  local  autonomy.  The  council  has  adopted  ordi- 
nances for  financial  statements  and  for  bonding, 
though  the  court  has  declared  the  latter  at  variance 
with  the  state  law.  The  mayor's  office  states  that  the 
requirements  of  the  last  vote  are  those  which  the  city 
has  always  endeavored  to  enforce,  and  it  is  compulsory 
for  the  street  railways  to  live  up  to  the  provisions  pre- 
scribed in  their  franchises. 

The  grants  by  municipal  councils  of  franchises  for 
public-service  utilities  ha\-e  been  the  cause  of  much 
anxious  thought.  How  can  they  be  wisely  safe- 
guarded ?  The  law  has  been  asked  to  limit  the 
maximum  term  and  to  create  other  restrictions.  There 
is  a  more  or  less  general  movement  to  rccjuire  that 
such  grants  be  referred  to  a  popular  vote  for  ratifica- 
tion or  for  rejection  through  a  people's  veto. 

Iowa,  which  as  early  as  1872  had  provided  for  a 
referendum  on  franchises  for  waterworks,  to  be  fol- 
lowed by  a  similar  regulation  in  1888  on  municipal 
lighting  plants,  established  in  i8(;()  an  optional  refer- 
endum   and    initiative    with    reference    to    all    similar 

103 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

quasi-public  services.  Either  the  council  may  submit 
the  question  at  a  general  or  special  election  or  the 
mayor  must  do  so  on  the  petition  of  twenty-five 
property-owners  from  each  ward.  Indiana,^  in  1899, 
established  an  optional  referendum  along  somewhat 
similar  lines. 

In  Ohio,  by  an  act  approved  by  Governor  Harris 
April  15,  1908,  no  ordinances  granting  or  extending 
a  franchise  to  any  street  railway  can  become  operative 
if  within  thirty  days  after  its  passage  by  the  council 
there  is  a  petition  of  fifteen  per  cent,  of  the  voters, 
until  it  has  been  submitted  to  either  a  general  or  spe- 
cial election  and  has  received  a  majority  of  the  votes 
cast. 

In  Cleveland,  at  a  special  election  October  22, 
1908,  a  referendum  invoked  against  the  "  security  " 
franchise  to  the  new  railway  company  resulted  in  an 
enormous  vote  being  cast,  defeating  the  traction  com- 
promise by  38,249  to  37,644.  A  fuller  discussion  of 
the  long  struggle  in  Cleveland  will  undoubtedly  be 
found  in  the  secretary's  annual  review  of  important 
events  of  the  year. 

An  amendment  to  the  charter  of  Memphis,  Ten- 
nessee, passed  March  10,  1905,  chapter  54,  section  29, 
enacts  that  no  quasi-public  franchise  shall  be  granted 
unless  approved  by  the  voters  at  a  general  or  special 
election  if  such  submission  has  been  demanded,  within 
thirty  days  of  its  passage,  by  five  hundred  freeholders. 
_ 1 

»  Shibley:  "Municipal  Affairs  "  Vol.  VI,  p.  785. 

104 


DIRECT  LEGISLATION  IN  AMERICA 

Nebraska  carried  the  system  of  its  fuller  recogni- 
tion of  the  people's  right  to  originate  or  to  veto  ordi- 
nances of  any  kind  when  by  chapter  32  of  1897,  in 
effect  on  July  10,  fifteen  per  cent,  of  the  voters  in  any 
municipal  subdivision  of  Nebraska  are  authorized  to 
propose  any  ordinance  which,  unless  adopted  by  the 
council,  goes  to  the  next  municipal  election.  If 
amended  by  the  council,  both  propositions  go,  and  that 
one  prevails  which  receives  the  larger  vote,  provided 
that  between  them  they  receive  a  majority  of  all  the 
votes  cast.  A  petition  of  twenty  per  cent,  sends  the 
question  to  a  special  election  within  thirty  to  sixty  days 
after  filing.  This  act  is  not  operative  till  accepted  by 
invoked  against  any  ordinance  within  thirty  days  after 
being  passed  by  the  council  unless  declared  to  be 
urgent  for  the  immediate  preservation  of  the  public 
peace  or  health,  or  unless  items  of  the  modern  city 
appropriations  and  passed  by  a  unanimous  yea  and 
nay  vote.  The  same  percentages,  fifteen  and  twenty, 
determine  with  reference  to  the  next  regular  municipal 
election  occurring  fifteen  days  after  filing  the  petition 
or  to  a  special  election  within  fifteen  to  twenty  days 
after  filing  the  petition.  The  referendum  may  be 
the  voters  of  the  particular  town  or  city.  Lincoln 
adopted  the  provisions  of  this  statute  at  the  city  elec- 
tion May  7,  1907,  by  2,754  to  679,  Mr.  F.  W.  Brown 
being  elected  mayor  by  2,632  to  2,590.  Omaha  ac- 
cepted this  initiative  and  referendum  statute  Novem- 
ber 6,  1906,  by  6,373  to  1,437,  '^^it  ""  fiuestions  under 
It  have  since  been  brought  to  a  popular  vote. 
8  105 


THE  INITIATIVE,    REFERENDUM    AND   RECALL 

South  Dakota  was  the  first  state  to  embody  in  her 
constitution  the  provisions  for  the  initiative  and  refer- 
endum, adopting  the  amendment  November  8,  1898, 
by-  23,816  to  16,483,  whereby  not  more  than  five  per 
cent,  of  the  voters  is  to  be  required  for  either  the 
initiative  or  the  referendum.  This  appHes  to  cities  as 
well  as  to  the  state,  and  the  legislature  the  following 
year  made  provisions,  chapter  94,  for  carrying  into 
effect  the  initiative  and  referendum  in  municipalities, 
fixing  the  requirement  at  five  per  cent,  of  the  vote  cast 
at  the  last  election. 

Oregon  adopted  a  state  system  of  the  initiative  and 
referendum  June  2,  1902,  by  a  vote  of  62,204  to 
5,668.  The  people  took  advantage  of  its  provision  for 
the  initiative  and  amended  the  constitution  at  the 
biennial  election  June  4,  1906,  by  47,678  to  16,735, 
and  established  local  direct  legislation,  with  not  more 
than  ten  per  cent,  required  to  order  the  referendum 
or  fifteen  per  cent,  to  propose  any  measure  by  the 
initiative  in  any  city  or  town. 

Montana  followed  Oregon  in  a  constitutional 
amendment  for  direct  legislation  November  6,  1906, 
with  a  vote  of  36,374  to  6,616,  and  the  legislature  the 
next  winter,  by  chapter  62,  provided  for  the  applica- 
tion in  cities  and  towns  of  the  referendum  on  the  peti- 
tion of  five  per  cent,  and  of  the  initiative  on  eight  per 
cent.,  with  fifteen  per  cent,  required  in  either  case  to 
demand  a  special  election. 

Oklahoma  in  her  new  constitution  adopted  Septem- 
ber 17,  1907,  which  President  Roosevelt  in  his  procla- 

106 


DIRECT  LEGISLATION  IN  AMERICA 

mation  on  November  i6,  1907,  declared  to  be  "  repub- 
lican in  form."  provides  for  a  local  referendum  and 
initiative  as  well  as  a  state  system,  and  fixes  the  per- 
centage for  cities  at  twenty-five.  In  the  constitutional 
amendment  establishing  a  state  system  of  direct  legis- 
lation, which  Maine  adopted  September  14,  1908,  by  a 
vote  of  51,991  to  23,743,  section  21  provides  that  any 
city  may  establish  the  initiative  and  referendum 
through  an  ordinance  ratified  by  a  popular  vote. 

In  Illinois,  under  the  public  opinion  law,  a  vote  was 
taken  at  the  state  election  in  November,  1902,  upon 
the  popular  petition  for  a  local  referendum  law  and 
resulted  in  a  favorable  vote  of  390,972  to  83,377. 
This  expression  of  opinion  was  ignored  by  the  legisla- 
ture. A  second  vote  was  taken  November  8,  1904,  on 
a  similar  question  of  establishing  a  local  five  per  cent, 
people's  veto,  and  resulted  in  an  even  more  over- 
whelming vote  in  its  endorsement — 535,501  to  95,420. 
The  people's  representatives,  however,  have  paid  no 
attention  to  these  and  other  similar  expressions  of  the 
people's  wishes. 

The  greatest  local  development  of  direct  legislation 
has  been  witnessed  in  the  Pacific  states.  San  Fran- 
cisco, under  the  home-rule  provisions  of  the  Califor- 
nia constitution,  elected  a  board  of  freeholders  De- 
cember 27,  1897,  to  propose  a  new  charter  which  was 
ratified  at  a  special  election  May  26,  1898,  by  14,386 
to  12,025,  and  having  been  approved  by  the  legislature 
in  1899,  chapter  2,  went  into  effect  January  8,  1900. 
It  provided  for  an  initiative  on  the  petition  of  fifteen 

107 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

per  cent,  of  the  voters  to  apply  either  to  ordinances 
or  to  charter  amendments ;  and  franchises  for  water- 
works or  hghting  plants,  or  ordinances  for  the  pur- 
chase of  land,  must  be  referred  to  the  next  election. 
The  same  system  was  copied  by  Vallejo  through  a 
special  election  December  8,  1898  (chapter  5,  1899) 
and  by  Fresno,  October  19,  1899  (chapter  9,  1901). 

The  initiative  and  referendum  system  which  is  gen- 
erally thought  of  when  reference  is  made  to  it  is  that 
of  Los  Angeles,  adopted  at  a  special  election  December 
I,  1902,  by  a  vote  of  12,105  to  i,955-  The  legislature 
ratified  it  in  1903,  chapter  6.  The  system  is  elab- 
orated in  much  more  detail  and  has  generally  served 
as  the  basis  or  model  for  other  cities  which  have  since 
adopted  direct  legislation. 

Under  the  initiative  any  proposed  ordinance  may 
be  presented  to  the  council.  If  five  per  cent,  petition, 
it  goes  without  alteration  to  the  next  municipal  elec- 
tion. If  fifteen  per  cent,  petition  and  request  a  special 
election,  it  must  be  passed  without  alteration  by  the 
council  within  twenty  days,  and  if  vetoed  by  the 
mayor,  repassed  by  the  council  or  the  council  must 
call  a  special  election  at  which  it  shall  be  submitted  to  a 
vote  of  the  people.  If  the  council  passes  it,  the  refer- 
endum may  still  be  invoked  against  it. 

The  basis  for  the  percentage  is  the  entire  vote  cast 
for  mayor  at  the  last  preceding  general  election.  The 
city  clerk  has  ten  days  in  which  to  examine  the  petition 
and  ascertain  whether  it  has  been  signed  by  the  requi- 
site number  of  qualified  electors.     If  found  insufficient, 

108 


DIRECT   LEGISLATION   IX   AMERICA 

the  petition  may  be  amended  within  ten  days,  after 
which  the  clerk  has  a  further  period  of  ten  days  to 
renew  his  verification  as  to  its  sufficiency  and  then 
present  it  to  the  council,  or  if  again  deficient  to  return 
it  without  prejudice  to  the  person  filing  it. 

Any  number  of  proposed  ordinances  may  be  voted 
upon  at  the  same  election,  but  not  more  than  one  spe- 
cial election  shall  be  held  in  any  period  of  six  months. 
Any  ordinance  proposed  by  petition  or  adopted  by 
popular  vote  can  be  amended  or  repealed  only  by  vote 
of  the  people,  though  the  council  may  submit  at  any 
succeeding  city  election  propositions  for  repeal  or 
amendment. 

The  referendum  applies  practically  to  all  ordi- 
nances except  those  declared  to  be  urgent  for  the  im- 
mediate preservation  of  the  public  peace,  health  or 
safety,  and  passed  by  a  two-thirds  vote  of  the  council. 
No  franchise  grants  can  be  construed  as  urgency 
measures.  If  a  seven  per  cent,  petition  is  presented  to 
the  council  within  thirty  days  from  its  final  passage 
and  approved  by  the  mayor,  the  ordinance  shall  be 
suspended  from  going  into  operation  and  the  council 
shall  reconsider  and  entirely  repeal  the  ordinance, 
or  it  shall  be  submitted  to  a  vote  of  the  electors  at  the 
next  general  election  or  at  a  special  election  called 
for  the  purpose,  and  shall  not  go  into  effect  unless 
approved  by  a  majority  of  voters  voting  on  the  same. 
Ten  days  prior  to  the  election  at  which  any  ordinance 
is  submitted  to  the  voters  the  city  clerk  mails  to  each 
voter  a  printed  copy  of  the  ordinance  with  a  sample 

109 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

ballot  unless  the  council  has  ordered,  in  place  of  this, 
its  publication  in  the  official  newspaper  of  the  city  in 
the  same  manner  as  ordinances  adopted  by  the  council 
are  required  to  be  published. 

The  movement  thus  started  made  rapid  progress. 
Sacramento,  San  Bernardino,  San  Diego  and  Pasa- 
dena held  special  elections  on  November  3,  1903,  Janu- 
ary 6,  1905,  January  27,  1905,  and  February  28,  1905, 
and  adopted  amendments  to  their  charters,  except  in 
the  case  of  San  Bernardino,  which  proposed  an  en- 
tirely new  charter,  and  the  legislature  gave  its  ap- 
proval in  1905,  in  chapters  12,  15,  ii  and  20  of  the 
current  resolutions. 

Eureka,  Santa  Monica,  Alameda,  Santa  Cruz, 
Long  Beach  and  Riverside  held  elections  on  June  19, 
1905,  March  28,  1906,  July  18,  1906,  January  22, 
1907,  February  5,  1907,  and  March  i,  1907,  to  adopt 
new  charters,  which  were  approved  by  the  legisla- 
ture in  its  session  of  1907,  in  chapters  14,  6,  7,  9,  15 
and  25. 

In  general  these  later  charters  followed  pretty 
closely  the  model  of  Los  Angeles.  San  Diego  adopted 
the  same  percentages ;  five  and  fifteen  per  cent,  for  the 
initiative  for  general  and  special  elections  respectively, 
and  seven  per  cent,  for  the  referendum.  Sacramento 
and  Riverside  require  ten  per  cent,  for  either  the 
initiative  at  a  general  election  or  for  the  referendum. 
Eureka,  Alameda  and  Santa  Cruz  raise  the  percentage 
for  a  special  election  for  the  initiative  to  twenty  and 
vary  the  referendum  slightly  by  having  fifteen  per  cent. 

no 


DIRECT   LEGISLATION   IN   AMERICA 

to  keep  an  ordinance  from  going  into  effect  before  the 
election,  while  ten  per  cent,  allows  it  to  become  opera- 
tive subject  to  its  *epeal  ten  days  after  an  adverse 
popular  vote. 

Long  Beach,  Santa  Monica,  Pasadena  and  San 
Bernardino  raise  the  percentage  still  higher,  to  thirty, 
for  the  initiative  at  a  special  election,  and  in  general 
have  high  percentages  for  the  other  requirements, 
ranging  from  ten  to  thirty. 

The  following  table  may  illustrate  more  graph- 
ically the  various  percentages  required  in  the  different 
cities : 

Initiative  to  Referendum 

General  or  Special  Elections 

San  Francisco 15 

Vallejo 15 

Fresno 15 

Los  Angeles 5  15                    7 

San  Diego 5  I5                    7 

Sacramento 10  15                   10 

Riverside 10  15                    10 

Eureka 10  20             10-15 

Alameda 10  20             10-15 

Santa  Cruz 10  20             10-15 

Long  Beach 10  30                  25 

Santa  Monica 25  30            25-30 

Pasadena 30  10 

San  Bernardino 30  30 

In  view  of  the  fact  that  the  initiative  and  referen- 
dum have  been  put  to  comparatively  rare  use,  it  would 
seem  distinctly  unwise  to  raise  the  percentages  so  high 
as  to  make  the  system  almost  unworkable  when  for 
good  reason  there  should  be  resort  to  it.     The  ten, 

III 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

twenty  and  ten  formula  may  be  a  conservative  and 
moderate  one,  though  friends  of  the  system  in  Los 
Angeles  advise  against  increasing  the  percentages 
which  prevail  there  of  five,  fifteen  and  seven. 

There  are  several  variations  on  the  general  model. 
Pasadena  allows  the  council  to  submit  to  the  voters  an 
alternative  to  the  measure  suggested  by  the  initiative. 
Eureka,  Alameda  and  Santa  Cruz  make  twenty-five 
per  cent,  obligatory  for  an  initiative  petition  against 
measures  adopted  by  the  electorate.  Santa  Monica 
does  not  allow  a  measure  enacted  by  the  people  to  be 
amended  by  the  council  before  two  years  and  forbids 
a  measure  to  be  submitted  a  second  time  except  by  the 
council  or  on  a  thirty  per  cent,  petition.  Santa  Cruz 
allows  a  referendum  on  the  same  measure  twice  within 
a  year  only  on  a  forty  per  cent,  petition.  Alameda 
permits  a  special  election  if  the  expenses  are  paid  in 
advance  by  the  applicant  for  a  franchise  or  by  other 
persons.  Alameda,  Santa  Monica,  Riverside  and  Sac- 
ramento provide  that  if  the  provisions  of  two  or  more 
measures,  wdiich  are  adopted  at  the  same  election,  con- 
flict, then  the  measure  receiving  the  highest  affirmative 
vote  shall  control. 

The  experience  of  Los  Angeles  throws  light  upon 
the  value  of  direct  legislation.  There  has  been  only 
one  special  election  called  under  a  fifteen  per  cent, 
initiative  petition  obtained  by  the  prohibitionists,  who 
tried  to  close  all  saloons ;  but  in  this  they  were  de- 
feated. 

At  the  general  election  December  6,    1904,   four 

112 


DIRECT   LEGISLATION   IN   AMERICA 

ordinances  were  presented  under  the  initiative  to  fix 
the  limits  of  slaughter-house  districts.  Though  con- 
fusing and  conflicting,  a  local  authority  states  that 
with  keen  intelligence  and  good  judgment  the  people 
carried  the  best  one  by  a  iiandsome  majority.  About 
a  year  ago  an  additional  franchise  of  great  financial 
and  strategic  value,  estimated  to  be  worth  a  million 
dollars,  was  given  by  the  council  to  the  street  railway 
corporation.  Though  rushed  through  to  catch  the  peo- 
ple napping,  under  the  threatened  use  of  the  referen- 
dum and  the  recall,  the  ordinance  was  revoked  by  the 
council.  In  the  spring  of  1908  the  council  granted 
for  five  hundred  dollars  another  very  valuable  fran- 
chise to  this  same  street  railway  company,  and  passed 
it  over  the  veto  of  the  mayor.  A  referendum  petition 
w^as  presented  May  18,  and  the  council  having  refused 
to  repeal  the  ordinance,  it  was  held  up  and  referred 
to  the  next  municipal  election.  Since  the  same  city 
council  had  refused  to  pass  an  ordinance  compelling 
the  street  railways  to  properly  equip  their  cars  with 
efficient  fenders  and  run  at  a  moderate  rate  of  speed 
within  the  heart  of  the  city,  although  the  accidents 
and  mortality  were  said  to  be  greater  proportionately 
than  in  any  other  city,  the  Voters'  League  secured 
over  four  thousand  signatures  to  a  petition  calling  for 
a  special  election,  but  before  presenting  it  persuaded 
the  council  to  adopt  a  satisfactory  ordinance,  which 
has  since  been  the  cause  of  saving  many  lives.  Los 
Angeles  claims  a  population  of  over  three  hundred 
thousand,  wiiich  would  perhaps  rank  it  as  the  seven- 

113 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

teenth  largest  city  in  the  United  States,  approximating 
the  size  of  Washington. 

As  the  city  in  which  the  modern  system  of  direct 
legislation  was  established  first  and  has  therefore  been 
given  the  longest  trial,  it  is  interesting  and  instructive 
to  see  what  testimony  is  offered  as  to  its  value.  The 
first  act  of  a  committee  lately  sitting  on  charter  re- 
vision was  to  resolve  that  the  direct  legislation  pro- 
visions be  retained  intact  without  any  increase  of  per- 
centages. 

Municipal  Affairs,  the  organ  of  the  Municipal 
League  of  Los  Angeles,  says  that  "nothing  better  has 
happened  to  Los  Angeles  than  making  the  initiative, 
referendum  and  recall  a  part  of  its  organic  law.  Large 
as  was  the  vote  in  their  favor,  it  would  be  many 
times  larger  should  any  attempt  be  made  to  eliminate 
them,"  and  points  out  "that  to  a  very  large  extent  the 
value  of  the  initiative,  referendum  and  recall  lies  not 
in  the  fact  that  they  are  used,  but  that  they  may  be 
used.  They  are  the  most  powerful  deterrent  we  have 
against  bad  officials  and  corrupt  and  incompetent  law- 
making." 

Two  years  ago  a  circular  letter  addressed  to  the 
Christian  people  of  California  says  that  "  civic  reform 
and  a  revival  of  practical  righteousness  cannot  be  se- 
cured by  individual  or  religious  efforts  alone,  without 
regard  to  environment  and  practical  means  of  work- 
ing. Our  duty  and  responsibility  as  voters  also  re- 
quire us  to  secure  a  simple  method  by  which  Christian 
influence  can  be  made  most  effective  in  promoting  the 

114 


DIRECT   LEGISLATION   IN  AMERICA 

public  welfare.  The  best  method  yet  proposed  for 
non-partisan  political  action  is  direct  legislation — 'the 
initiative  and  referendum."  This  circular  was  signed 
by  ten  leading  ministers  of  the  Methodist,  Baptist, 
Presbyterian,  Congregational  and  other  denomina- 
tions, by  Bishop  T.  J.  Conaty  of  Monterey  and  Los 
Angeles,  and  by  the  president  of  Pomona  College. 

The  Republican  mayor  of  Riverside,  which  adopted 
direct  legislation  last  year  but  as  yet  has  not  brought 
any  questions  under  it  to  a  popular  vote,  writes  that 
as  an  abstract  proposition  he  thinks  there  is  no  room 
for  adverse  argument,  but  adds:  "In  my  judgment 
if  the  lawmakers  could  be  elected  or  appointed  free 
from  any  obligation  to  either  corporations,  individ- 
uals, or  parties  and  could  then  make  the  laws  plain 
and  do  away  with  technicalities  and  give  a  c|uick  serv- 
ice of  the  law  to  all  alike,  there  would  be  very  little 
agitation  for  what  the  strictly  political  persons  call 
these  insane  and  anarchistic  provisions."  As  no 
American  city  has  yet  been  able  to  accomplish  the 
aforesaid  "  if,"  it  is  probable  that  these  "  insane  and 
anarchistic  provisions " — the  best  method  yet  pro- 
posed for  non-partisan  political  action — will  continue 
to  be  resorted  to  by  those  who  desire  to  make  Chris- 
tian influences  effective  in  promoting  the  public  wel- 
fare. 

In  Alameda  the  council  voted  to  spend  the  one  hun- 
dred and  fifteen  thousand  dollars,  authorized  l)y  popu- 
lar vote  for  playgrounds,  upon  one  tract  only,  at  a 
very   high   price.      The   mayor,    favoring  three   play- 

115 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

grounds  in  different  parts  of  the  city,  vetoed  the  ordi- 
nance, and  in  the  ensuing  deadlock  secured  an  initia- 
tive petition  of  twenty  per  cent,  of  the  voters,  by  which 
this  question  was  referred  to  popular  decision  at  a 
special  election  May  2,  1908,  when  the  mayor's  posi- 
tion was  sustained  by  a  vote  of  1,078  to  626,  which 
carried  every  precinct. 

Inasmuch  as  the  recall  has  been  adopted  very  gen- 
erally as  a  part  of  the  new  system  of  direct  legislation 
and  is  often  referred  to,  as  above,  as  one  of  the  bul- 
warks of  the  people  against  misrepresentative  gov- 
ernment, it  may  be  well  to  consider  briefly  its  present 
status  in  the  above  cities.  Papers  in  the  1905  and 
19C6  volumes  of  Pyocccdiugs  of  the  League  have  de- 
scribed the  principles  of  the  recall  as  first  devised  for 
Los  Angeles  and  later  adopted  in  Pasadena,  Fresno, 
San  Bernardino  and  San  Diego,  and  also  the  first  use 
of  it  in  Los  Angeles  in  the  removal  of  a  councilman. 
Since  then  Santa  Monica,  Alameda,  Santa  Cruz,  Long 
Beach  and  Riverside,  as  well  as  San  Francisco  and 
Vallejo,  whose  charters  were  adopted  prior  to  this  new 
movement  by  Los  Angeles,  have  all  inserted  in  their 
charters  provisions  for  the  recall.  In  four  instances 
the  required  percentage  has  been  raised  from  twenty- 
five  to  thirty  or  forty.  The  popular  votes  on  its  adop- 
tion have  been  strongly  in  its  favor;  the  latest  one 
being  22,945  to  5.597,  in  San  Francisco  in  November, 
1907,  where  it  was  proposed  by  an  initiative  petition. 
The  recall  was  invoked  June  30,  1907,  in  two  wards 
of  San  Bernardino  against  two  councilmen.    A  petition 

116 


DIRECT  LEGISLATION   IN  AMERICA 

for  the  recall  was  held  by  the  court  as  valid  in  San 
Diego,  but  the  term  of  the  councilmen  expired  before 
the  legal  proceedings  had  been  brought  to  a  close. 

Oregon  adopted  on  June  i,  1908,  by  58.381  to 
31,002,  under  an  initiative  petition,  an  amendment  to 
her  constitution  whereby  she  became  the  first  state  to 
render  every  public  officer  subject  to  the  recall  by  the 
voters  of  the  state  or  of  the  electoral  district  from 
which  he  is  chosen,  not  more  than  twenty-five  per  cent, 
of  those  voting  for  the  justices  of  the  supreme  court  at 
the  preceding  election  to  be  necessary  for  filing  the 
petition.  The  recall  thus  becomes  available  for  all 
cities  in  the  state. 

Portland,  Oregon,  by  its  charter  adopted  June,  1902, 
provides  for  a  fifteen  per  cent,  initiative  to  the  general 
election  and  a  fifteen  per  cent,  referendum  against  all 
ordinances  for  franchises  or  for  the  municipal  owner- 
ship of  public  utilities.  At  the  election  June  3,  1907, 
twenty-one  cjuestions  were  submitted  to  the  voters,  but 
of  this  seemingly  excessive  number  sixteen  were  re- 
ferred by  a  vote  of  the  city  council  and  only  five  were 
due  to  initiative  petitions. 

In  Washington,  under  a  law  passed  March  21, 
1903,  a  petition  of  fifteen  per  cent,  of  the  voters  ask- 
ing the  adoption  of  a  specified  charter  amendment, 
within  the  realm  of  local  affairs,  causes  it  to  be  sub- 
mitted at  the  next  municipal  election.  A  charter 
amendment  was  thus  initiated  in  Seattle  and  adopted 
March  3,  1908,  by  11,493  to  6,063,  providing  for  the 
referendum  on  ten  per  cent,  and  for  the  initiative  on 

117 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

twenty-five  per  cent,  to  go  to  the  next  regular  elec- 
tion. Three  petitions  have  since  been  presented  but 
were  found  insufficient.  The  recall  was  adopted  at  the 
city  election  March  5,  1906,  by  9,312  to  1,265.  Ever- 
ett adopted  a  city  charter  November  26,  1907,  contain- 
ing the  initiative,  referendum  and  recall  by  a  vote  of 
2,287  to  389.  The  percentages  are  twenty,  ten  and 
twenty-five  respectively.  Spokane  has  a  provision  for 
a  fifteen  per  cent,  referendum. 

Denver,  under  the  home-rule  provisions  of  the  Col- 
orado constitution,  elected  its  board  of  freeholders  and 
ratified  the  proposed  charter  March  29,  1904.  A 
twenty-five  per  cent,  petition  is  required  for  either  the 
initiative  or  the  referendum  and  all  franchises  must  be 
submitted  to  the  vote  of  the  qualified  taxpaying  voters 
and  the  expense  of  such  submission  paid  in  advance 
by  the  applicant.  At  the  general  election  May  15, 
1906,  under  a  petition  with  twenty  thousand  signatures 
an  initiative  ordinance  was  voted  on  which  had  been 
drafted  by  the  Municipal  Ownership  League  fixing 
maximum  charges  for  gas,  electricity  and  water,  and 
providing  for  children's  half-fare  tickets  on  the  street 
railways. 

The  initiative  and  referendum  have  been  given  a 
great  impetus  through  another  movement  which  has 
aimed  by  establishing  a  commission  form  of  govern- 
ment to  lessen  inefficiency,  waste  and  corruption 
through  concentrating  power  and  responsibility  upon  a 
small  body  of  men.  The  commission  system  was 
first  authorized    for  Galveston   in  a  charter  granted 

118 


DIRECT  LEGISLATION   IN  AMERICA 

by  the  Texas  legislature  in  1901.  A  full  account  of 
this  plan  in  its  operation  there  may  be  found  in  the 
1906  and  1907  volumes  of  the  League's  Proceedings. 
The  referendum  is  obligatory  on  proposed  issues  of 
bonds  which  must  be  approved  by  a  majority  of  qual- 
ified taxpaying  voters.  The  example  of  Galveston 
was  followed  by  other  cities  in  Texas.  Houston  in 
1905.  and  El  Paso,  Fort  Worth  and  Dallas  in  1907, 
obtained  charters  for  a  commission  government,  and 
Waco  voted  for  it  this  spring.  San  Antonio  in  a 
new  charter  of  1903  provided  for  a  ten  per  cent,  refer- 
endum to  apply  only  to  franchises  and  suspending  the 
operation  of  the  ordinance  until  it  has  been  ratified  by 
a  majority  of  all  voters.  Houston  introduces  a  varia- 
tion in  that  the  referendum,  on  all  franchises,  is  avail- 
able on  the  petition  of  the  definite  number  of  five  hun- 
dred voters,  while  El  Paso  introduces  a  further  varia- 
tion in  making  the  referendum  depend  on  four  hundred 
voters  who  are  taxpayers,  or  on  the  volition  of  the 
council  itself.  Fort  Worth  provides  a  twenty  per  cent, 
referendum  and  also  a  twenty  per  cent,  recall.  Green- 
ville and  Denison  in  their  1907  charters  for  a  council 
of  mayor  and  two  aldermen  provide,  the  one  for  a 
referendum  on  franchises  on  the  petition  of  one  hun- 
dred voters,  and  the  other  for  a  twenty  per  cent,  recall. 
Dallas  follows  the  California  model  more  closely  in 
allowing  an  initiative  to  the  general  election  on  five 
per  cent,  with  fifteen  per  cent,  for  a  special  election, 
and  a  referendum  on  franchises  on  a  petition  either  of 
fifteen  per  cent,  or  of  five  hundred  voters,  and  doubles 

119 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

the  time  within  which  to  petition  by  making  this  period 
sixty  days ;  and  also  has  a  thirty-five  per  cent,  recall. 

The  final  form  by  which  the  commission  plan  of 
government  is  at  the  present  time  being  generally  com- 
bined with  direct  legislation,  and  often  with  the  recall 
of  the  Los  Angeles  type,  has  been  made  prominent  by 
Des  Moines.    By  a  law  passed  March,  29,  1907,  Iowa 
permits  all  cities  in  the  state  with  a  population  exceed- 
ing twenty-five  thousand  to  adopt  by  popular  vote,  on 
a  petition  of  twenty-five  per  cent,  of  the  number  vot- 
ing at  the  preceding  city  election,  a  charter  which  is 
set  forth  in  the  act.     Des  Moines  adopted  this  charter 
June  20,   1907,  by  6,044  to  4-143-  ^nd  it  went  into 
efifect  the  following  March.     The  initiative  requires  a 
ten   per   cent,    petition    for   the   general   election    and 
twenty-five  per  cent,  for  a  special  election.    The  refer- 
endum may  be  demanded  by  a  twenty-five  per  cent, 
petition  presented  within  ten  days  after  the  passage 
of  the  ordinance  objected  to.     Twenty-five  per  cent,  is 
likewise  required  to  bring  the  recall  into  operation. 
At  the  election  November  3.   1908,  there  were  three 
referenda  voted  on  and  carried  by  decisive  majorities. 
An  interesting  incident  was  the  voting  of  the  women 
on  these  questions  in  accordance  with  the  terms  of  the 
charter.     Cedar  Rapids  is  the  second  city  in  the  state 
to  adopt  a  similar  charter  which  went  into  effect  April 
8,  1908,  and  according  to  the  mayor  has  been  univer- 
sally satisfactory.     Sioux  City  voted  against  the  ac- 
ceptance of  a  commission  charter  567  to  533.     South 
Dakota  passed  an  act,  chapter  86,  in  1907,  that  is  very 

120 


DIRECT  LEGISLATION  IN  AMERICA 

similar  to  the  one  in  Iowa,  but  the  percentages  are 
considerably  lower.  Cities  are  allowed  to  adopt  the 
commission  form  charter  at  special  elections  held  under 
an  initiative  petition  of  fifteen  per  cent.  Both  the  in- 
itiative and  the  referendum  are  brought  into  use  on 
a  five  per  cent,  petition,  and  a  period  of  twenty  days 
is  allowed ;  while  the  recall  requires  fifteen  per  cent. 
Sioux  Falls  voted  September  29,  1908,  by  857  to  353, 
to  incorporate  under  this  charter.  Lewiston  w'as  given 
a  new  charter  by  the   Idaho   legislature,    March    13, 

1907,  providing  for  a  mayor  and  six  councilors  elected 
at  large.  The  initiative  petitions  of  five  and  fifteen  per 
cent,  call  for  action  at  general  and  special  elections 
respectively.  The  referendum  may  be  invoked  within 
thirty  days  against  franchises  and  real  estate  ordi- 
nances on  petition  of  three  hundred  voters.  The  recall 
requires  twenty-five  per  cent.  Under  the  initiative  a 
special  election  was  held  November  5,  1908,  on  the 
petition  for  an  ordinance  designed  to  secure  prohibi- 
tion throughout  the  city.    The  ordinance  w^as  defeated. 

Kansas  passed  an  act  Alarch  2,  1907,  setting  forth 
a  commission  form  of  government  and  permitting  all 
cities  of  the  first  class  to  adopt  it  by  a  majority  vote 
at  a  special  election.  A  ten  per  cent,  referendum  is 
authorized  on  all  franchise  ordinances  wMthin  sixty 
days  after  their  passage  and  the  entire  expense  of  the 
city  election  must  be  paid  in  advance  by  the  franchise 
applicant.     Leavenworth  adopted  the  act  February  11, 

1908,  by  1,932  to  1,585,  but  Wichita  rejected  it,  De- 
cember 3,  1907,  by  3,266  to  1,218. 

(J  121 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

In  conservative  Massachusetts  two  cities  have  blazed 
the  way  to  direct  legislation  in  the  charters  which  they 
have  just  adopted.  Haverhill  was  the  first  to  accept 
the  new  law,  chapter  574,  by  a  vote  of  3,066  to  2,242, 
at  a  special  election  October  6,  1908,  following  the 
model  of  Des  Moines  exactly  in  the  various  percentages 
required  for  the  initiative,  the  referendum  and  the 
recall.  Gloucester  accepted  chapter  611  on  Novem- 
ber 3,  1908,  by  1,762  to  1,400.  Twenty-five  per  cent,  is 
required  for  either  the  referendum  or  the  initiative, 
and  the  recall  is  not  authorized. 

Kansas  City  elected  a  board  of  freeholders  under 
the  home  rule  provisions  of  the  Missouri  constitution 
and  adopted  the  charter  prepared  by  them  at  a  special 
election  August  4,  1908,  by  a  vote  of  14,069  to  5,219. 
The  recall  which  was  submitted  as  a  separate  proposi- 
tion was  lost,  not  receiving  the  necessary  four-sevenths 
of  the  total  vote,  the  figures  being  4,099  to  2,724.  All 
franchises  are  subject  to  a  twenty  per  cent,  referendum 
within  sixty  days  and  if  a  special  election  is  called,  the 
expenses  must  be  borne  by  the  person  or  corporation 
in  whose  favor  the  ordinance  is  enacted.  A  ten  per 
cent,  initiative  petition  can  cause  amendments  to  the 
charter  to  be  submitted  to  a  general  or  special  election 
at  which  they  must  be  accepted  by  a  three-fifths  ma- 
jority of  those  voting.  North  Dakota  and  Mississippi 
are  other  states  that  in  1907  (see  chapters  45  and  108) 
provided  for  a  popular  initiative  of  ten  per  cent,  to 
call  for  special  elections  to  act  on  the  question  of 
adopting   commission   government    charters    in    cities. 

122 


DIRECT  LEGISLATION  IN  AMERICA 

Wisconsin,  in  chapter  670,  authorizes  in  1907  the  same 
popular  initiative  of  ten  per  cent,  to  bring  before  the 
voters  of  any  city  the  question  of  accepting  tliat  act 
wliich  forbids  party  designations  on  nomination  papers 
or  ofificial  ballots. 

At  the  other  extreme  from  the  commission  form  of 
government  is  the  plan  adopted  at  Newport,  Rhode 
Island,  June  6,  1907,  by  a  vote  of  1,804  to  1,161, 
where  the  representative  council  consists  of  the  un- 
usual number  of  one  hundred  and  ninety-five  members 
elected  from  the  five  wards,  with  a  mayor  and  five 
aldermen.  One  hundred  electors  may  initiate  a  peti- 
tion for  any  ordinance  or  expenditure  of  money  ex- 
ceeding ten  thousand  dollars  and  if  the  council  refuses 
to  pass  it,  a  second  petition  of  three  hundred  electors, 
or  roughly  six  per  cent.,  causes  the  proposition  to  be 
referred  to  special  ward  meetings  of  the  qualified 
electors.  All  votes  of  the  council  requiring  the  expen- 
diture of  a  similar  sum,  in  addition  to  the  regular  ap- 
propriations, are  subject  within  seven  days  to  a  refer- 
endum petition  of  one  hundred  and  fifty  electors  and 
must  then  be  referred  within  thirty  days  to  special 
ward  meetings. 

Other  cities  are  now  considering  the  adoption  of 
direct  legislation  under  new  charters,  among  them  be- 
ing Milwaukee,  Wisconsin,  Berkeley,  California,  and 
St.  Joseph,  Missouri.  No  instance  is  recorded  of  any 
city  rejecting  direct  legislation  after  having  once 
adopted  it  and  tried  it. 

Special  elections  should  not  be  held  except  when 

123 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

the  questions  to  be  presented  are  of  extreme  impor- 
tance and  such  as  to  arouse  the  community  to  exhibit 
its  interest  b}-  a  large  vote.  Under  such  conditions 
special  elections  are  justifiable  because  they  further 
tend  to  keep  the  questions  out  of  politics  and  allow 
them  to  be  settled  on  their  merits.  Therefore  the  per- 
centages requisite  for  summoning  special  elections 
should  be  comparatively  high,  while  in  other  cases  they 
should  be  reasonably  moderate,  and  the  time  within 
which  a  referendum  petition  may  be  presented  of  suf- 
ficient length  so  as  not  to  make  the  burden  unreason- 
ably arduous  or  impracticable.  Experience  shows  that 
neither  the  initiative  nor  the  referendum  is  abused  by 
an  excessive  number  of  petitions. 

Nearly  every  form  or  combination  of  forms  in 
municipal  government  has  been  tried  and  hitherto  has 
been  more  or  less  of  a  failure.  Two  fundamental  dif- 
ficulties have  been  experienced.  The  masses  of  the 
voters  have  been  unfortunately  divided  by  allegiance  to 
and  consideration  of  national  or  state  partisan  organi- 
zations. The  influential  and  property  classes  have  too 
often  had  financial  interests  at  stake  in  the  quasi-pub- 
lic service  corporations  which  have  prevented  them 
from  considering  municipal  questions  with  an  eye 
solely  to  the  general  welfare  of  a  community. 

Direct  legislation  is  of  immense  gain  in  concen- 
trating the  attention  of  the  voters  upon  measures  and 
not  men.  Partisan  consideration  can  no  longer  domi- 
nate. Instances  are  numerous  where  party  candidates 
have  won,  but  the  measures  they  advocated  or  had 

124 


DIRECT  LEGISLATION  IN  AMERICA 

passed  have  been  defeated.  Not  only  is  the  interfer- 
ence of  national  partisanship  in  municipal  affairs  very 
largely  reduced  and  neutralized  by  the  initiative  and 
the  referendum,  but  there  is  a  simultaneous  movement 
for  its  elimination  by  legislative  enactment.  The  char- 
ters of  the  Des  Moines  character  expressly  forbid  par- 
tisan designations  upon  the  ballots. 


CHAPTER    V 

THE  REFERENDUM  IN  THE  UNITED  STATES  * 

Knowledge  can  be  made  useful  as  a  basis  for  pub- 
lic action  only  by  the  general  acceptance  of  principles 
which  become  thereby  commonplace ;  and  in  politics 
one  of  the  most  trite  among  these  is  the  doctrine  that 
the  value  of  an  institution  depends  upon  its  harmony 
with  its  environment.  The  referendum,  or  submission 
of  laws  to  direct  popular  vote,  has  grown  up  in  com- 
munities whose  other  institutions  have  differed  in  many 
respects  from  those  of  England.  To  point  out  those 
differences  and  explain  their  effects  would  require  more 
space  than  the  pages  of  a  review  will  allow.  In  fact, 
to  compress  so  large  a  matter  into  so  small  a  room  it  is 
necessary  to  limit  one's  horizon  still  farther  by  exclud- 
ing all  subjects  not  strictly  germane  to  the  present  dis- 
cussion in  England,  such  as  the  local  referendum,  that 
is,  the  popular  vote  of  the  people  of  a  city  or  district 
upon  a  question  of  purely  municipal  character  or  upon 
the  application  of  a  general  act  to  that  district  alone. 

The  referendum,  in  the  restricted  sense  of  a  sub- 

»  By  President  A.  Lawrence  Lowell.      Reprinted  by  permission 
from  The  Quarterly  Review,  June,  191 1. 

126 


REFERENDUM   IN   THE   UNITED    STATES 

mission  to  a  vote  by  the  whole  electorate  of  measures 
passed  by  the  representative  body,  has  been  introduced 
in  three  different  forms  at  three  different  periods  of 
American  history.  The  periods  have  to  some  extent 
overlapped,  yet  the  movements  have  been  so  far  dis- 
tinct that  it  is  con^•enient  to  describe  them  separately ; 
and,  in  fact,  we  can  recognize  three  notable  waves  of 
the  movement  for  direct  popular  legislation,  each  rising 
higher  than  the  last. 

In  New  England,  before  the  Revolution,  the  mem- 
bers of  colonial  assemblies  were  often  treated  as  dele- 
gates appointed  to  confer  together  and  report  to  their 
constituents;  and  after  the  end  of  the  colonial  period 
there  lingered  a  kindred  practice  of  instructing  the  rep- 
resentatives in  town  meeting.  But  leaving  aside  these 
early  types  of  democracy,  the  modern  referendum  first 
appears  in  America  in  the  form  of  submitting  state 
constitutions  to  the  people  for  ratification.  This  was 
done  in  Massachusetts  in  1778,  when  the  proposed 
"  Frame  of  Government  "  was  rejected  by  the  voters; 
and  again  in  1780,  when  the  constitution  that  is  still 
in  force  in  the  state  was  adopted.  New  Hampshire 
followed  her  example  immediately  afterwards,  submit- 
ting to  the  people  one  constitution  which  was  rejected 
in  1779,  ^^""^  another  which  was  ratified  in  1783.  It 
was  nearly  forty  years  before  the  procedure  was  copied 
elsewhere,  but  the  custom  then  spread  rapidly;  and 
after  1820  almost  all  new  state  constitutions  were  sub- 
mitted to  popular  vote.  The  uniformity  of  practice 
has  been  seriously  interrupted  only  on  two  occasions, 

127 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

each  the  result  of  wholly  exceptional  conditions.  The 
first  occurred  when  the  southern  states,  during  the 
stress  of  secession  and  reconstruction,  dispensed  with 
the  practice ;  the  second,  when  several  of  these  states 
followed  this  precedent  in  their  recent  effort  to  dis- 
franchise the  negroes.  The  situation  in  the  last  of 
these  cases  was  anomalous.  To  submit  to  the  old 
electorate  the  question  whether  it  would  withdraw  the 
suffrage  from  a  large  part  of  its  members  was  clearly 
to  imperil  the  result ;  and  hence  in  several  of  the  states 
a  convention  framed  and  adopted  a  new  constitution 
without  a  popular  vote.  The  action  showed  no  distrust 
of  the  general  principle ;  and  it  is  safe  to  regard  the 
doctrine  that  a  state  constitution  must  be  ratified  by 
a  vote  of  the  people  as  a  firmly  established  tradition  in 
American  public  life. 

The  practice  has  been  applied  not  only  to  the  re- 
vision of  the  instrument  as  a  whole  by  the  adoption 
of  a  new  constitution,  but  also  to  what  the  Swiss  call 
a  partial  revision — that  is,  the  adoption  of  a  particu- 
lar amendment ;  a  provision  empowering  the  legislature 
to  enact  amendments  subject  to  ratification  by  popular 
vote  being  embodied  in  the  constitution  itself.  Such  a 
provision  first  appeared  in  Connecticut  in  1818,  and 
was  copied  by  other  states  until  it  became  almost  uni- 
versal. When  we  remember  that  the  constitutions, 
especially  among  the  newer  states,  have  been  growing 
more  and  more  elaborate,  including  many  subjects  nor- 
mally within  the  range  of  current  legislation,  it  is  evi- 
dent that  the  constitutional  referendum  covers  a  very 

128 


REFEREXDUM    IX   THE   UXITED    STATES 

wide  field.  Still  it  is  a  different  thing  from  a  general 
referendum  on  ordinary  laws,  especially  in  America, 
where  the  stream  of  statutes  is  swollen  to  such  a  tor- 
rent that  the  arts  of  statesmanship  have  been  largely 
applied  to  the  construction  of  dykes  to  prevent  it  from 
flooding  the  country.  Since  the  matters  comprised  in 
the  constitutions  have  been  those  that  were  deemed 
relatively  permanent,  the  popular  vote  on  constitutional 
questions  furnished  by  itself  imperfect  evidence  of  the 
way  in  which  a  general  referendum  would  work ;  and 
yet  it  is  only  in  this  form  that  the  referendum  in  the 
United  States  has  endured  sufficiently  long,  and  has 
prevailed  widely  enough  to  justify  conclusions  drawn 
from  experience. 

In  measuring  the  value  of  any  popular  institution 
which  is  intended  to  bring  public  opinion  to  bear  upon 
political  affairs,  we  may  properly  ask  ourselves  four 
fpiestions :  whether  it  has  really  any  subst-antial  effect 
or  is  an  empty  form ;  whether  it  fairly  expresses  public 
opinion  ;  whether  the  opinion  so  expressed  is  wise  ;  and 
whether  after  long  experience  it  retains  general  respect. 

That  the  constitutional  referendum  has  a  substan- 
tial  effect  there  can  be  no  doubt,  for  amendments  re- 
ferred to  the  people  are  often  rejected.  It  has  been 
asserted  that  legislators  sometimes  pass  on  to  the  popu- 
lar tribunal  amendments  in  which  they  have  little  faith, 
in  order  to  rid  themselves  of  uncomfortable  political 
questions ;  but  such  cases  can  form  only  a  small  part 
of  the  measures  rejected  by  the  people.  A  few  figures 
quoted  by  Dr.  Oberholtzer  are  conclusive  upon  the  free- 

129 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

dom  with  which  the  voters  refuse  their  assent  to  meas- 
ures they  do  not  Hke.  He  tells  us  that  the  Legisla- 
tive Bulletin  of  the  New  York  State  Library  for  the 
years  1895  to  1897  gives,  for  all  the  states,  one  hun- 
dred and  ten  constitutional  amendments  submitted  to 
popular  vote,  of  which  fifty  were  ratified  and  sixty 
rejected.  In  an  earlier  periodical,  covering  the  six 
years  from  1886  to  1891,  he  finds  one  hundred  and 
sixteen  amendments  so  submitted,  fifty-four  of  them 
being  accepted  and  sixty-two  rejected.  Whether  com- 
plete statistics  for  a  century  would  show  that  more  or 
less  than  one-half  of  the  amendments  to  state  consti- 
tutions had  survived  the  ordeal  of  a  popular  vote,  it 
is  certain  that  the  proportion  rejected  would  prove 
the  ballot  to  be  no  empty  form,  but  a  highly  effective 
instrument  for  defeating  proposed  changes  in  the  fun- 
damental law. 

How  far  the  result  of  the  popular  vote  on  legisla- 
tive proposals  fairly  expresses  public  opinion  is  a  much 
more  difficult  question,  on  account  of  the  smallness 
of  the  vote  cast.  The  vote  on  measures  is  always  less 
than  that  for  the  principal  public  officers  to  be  elected 
at  the  same  time.  /\s  Dr.  Oberholtzer  remarks,  only 
"  about  a  half  of  all  those  who  know  their  own  minds 
respecting  candidates  seem  to  care  anything  about 
measures."  Legally  those  who  do  not  vote  are  neg- 
lected, and  that  is  the  only  way  in  which  the  referen- 
dum can  practically  be  used ;  but  when  twenty-six  per 
cent,  of  the  people  vote  for  a  measure  and  twenty-four 
per  cent,  against  it,  one  would  be  rash  in  making  any 

130 


REFERENDUM   IN   THE  UNITED    STATES 

positive  assertion  about  public  opinion  on  the  matter. 
The  experience  of  Massachusetts — a  conservative 
commonweahh  with  a  good  legislature,  whose  people 
have  practised  the  art  of  popular  voting  on  constitu- 
tional questions  longer  than  any  other  community  too 
large  to  meet  in  a  general  assembly— may  be  of  inter- 
est on  the  two  questions  already  discussed.  Since  the 
adoption  of  the  constitution  of  1780  there  have  been 
submitted  to  the  people  fifty-eight  questions,  of  which 
thirty-nine  were  answered  in  the  affirmative  and  nine- 
teen in  the  negative.^  The  rejection  of  one-third  of 
the  proposals  shows  that  the  people  had  a  mind  of 
their  own ;  but  the  variation  in  the  interest  they  ap- 
peared to  take  in  the  different  measures  is  surprising. 
The  votes  cast  at  the  referenda  have  varied  from  a  num- 
ber slightly  in  excess  of  those  polled  for  the  candidate 
for  governor  in  the  same  year  down  to  one-thirtieth 
part  thereof,  two  measures  being  actually  carried  by 
less  than  4.500  affirmative  votes,  although  nearly  170,- 
000  were  cast  in  the  election  of  the  governor.  On  ten 
measures  the  number  of  votes  polled  was  less  than 
one-fifth  of  the  number  cast  in  the  election ;  on  forty- 
two  measures  it  was  less  than  two-thirds ;  and  it  must 
be  remembered  that  only  seventy-five  per  cent,  of  the 
registered  voters  cast  their  ballots  even  for  governor. 
In  this  connection  it  may  be  observed  that  the  vote  is 
almost  always  larger  on  measures   which   have  been 


'  One  of  those  rejected  relating  to  the  introduction  of  woman 
suffrage  was  merely  of  an  advisory  nature. 

131 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

rejected  than  on  those  which  have  been  adopted.  In 
only  two  instances  of  acceptance,  indeed,  has  the  total 
vote  exceeded  two-thirds  of  that  cast  in  the  election 
for  governor;  and  no  constitutional  amendment  has 
been  ratified  by  a  majority  of  the  electorate.  In  cases 
of  rejection,  however,  the  vote  has  usually  been  close, 
whereas  in  cases  of  adoption  the  margin  has  commonly 
been  considerable ;  so  that  a  small  total  vote  may  have 
signified  not  only  apathy  but  in  part  also  confidence 
in  the  result. 

The  third  question — whether  the  popular  opinions 
expressed  by  the  constitutional  referendum  have  been 
wise  or  not — is  not  a  simple  one.  The  answer  will 
depend  very  much  on  the  prepossessions  of  the  person 
who  makes  it ;  but  a  survey  of  the  fifty-eight  popular 
votes  w^hich  have  taken  place  in  Massachusetts  since 
1780  leaves  the  impression  that  almost  all  those  of 
doubtful  wisdom  were  either  in  accord  with  the  best 
thought  of  the  time  or  were  afterwards  reversed. 

On  the  final  question — whether  the  referendum  on 
constitutional  matters  in  the  United  States  retains  gen- 
eral respect  or  not — there  can  be  no  doubt ;  for  the 
institution  is  as  deeply  rooted  in  public  esteem  as  ever, 
and  no  one  would  seriously  propose  its  abolition. 

The  constitutional  referendum,  of  which  I  have 
been  speaking,  was  a  natural  result  of  the  attempt  to 
place  the  fundamental  law  on  a  different  basis  from 
ordinary  legislation.  The  next  development  of  direct 
popular  action  in  lawmaking,  not  very  different  from 

132 


REFERENDUM  IN  THE  UNITED   STATES 

the  first  in  principle  or  in  its  effects,  arose  from  a  prac- 
tical demand  for  a  check  upon  the  legislature  when 
dealing  with  matters  that  involve  peculiar  temptations 
or  the  pressure  of  local  or  other  interests.  With  this 
object  a  clause  was  inserted  in  the  constitutions  of  sev- 
eral states  providing  that  the  action  of  the  legislature 
upon  certain  specific  subjects  should  not  be  valid  unless 
ratified  by  popular  vote,  although  the  other  formalities 
of  constitutional  amendment  were  not  required.  The 
practice  began  about  the  middle  of  the  last  century, 
and  has  been  applied  to  the  selection  of  sites  for  state 
capitals  and  public  establishments,  to  the  contracting 
of  state  debts,  to  taxation  in  excess  of  a  fixed  amount, 
to  the  creation  of  banks,  to  the  extension  of  the  suf- 
frage, and  to  a  few  other  matters.  It  has  been  used 
mainly,  although  not  exclusively,  by  the  newer  states, 
and  was  devised  to  meet  difiiculties  keenly  felt,  rather 
than  as  an  expression  of  any  general  political  principle. 
While  it  has  been  retained  in  those  communities  where 
it  arose,  it  may  be  regarded  as  the  product  of  immature 
conditions,  for  it  has  shown  no  marked  tendency  to 
spread  to  other  parts  of  the  country  or  to  expand  over 
new  subjects. 

In  connection  with  these  constitutional  provisions 
for  the  reference  of  particular  matters  to  popular  \'Ote 
we  must  speak  of  the  attempt  occasionally  made  by 
legislatures,  in  the  absence  of  any  such  provision,  to 
refer  some  perjjlexing  question  to  the  people.  The 
procedure  might  perhaps  have  become  comuK  >n  had  it 
not  been  checked  by  the  courts,  which  ha\i'  held  that 

133 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

without  constitutional  authority  a  legislature  cannot 
divest  itself  of  responsibility  for  legislation  by  shifting 
it  on  to  the  shoulders  of  the  electors.  It  can,  of  course, 
consult  them  by  means  of  an  informal  vote,  and  this  is 
sometimes  done;  but  it  cannot  make  that  vote  decisive 
upon  the  enactment  of  a  statute.  No  such  obstacle 
would,  of  course,  arise  in  the  case  of  the  British  Par- 
liament. 

The  third  and  most  comprehensive  movement  for 
a  referendum  is  very  recent.  It  takes  the  form  of  a 
general  provision  in  the  constitutions  that,  upon  the 
petition  of  a  certain  number  of  citizens,  any  law,  not 
declared  urgent  by  the  legislature,  shall  be  submitted 
to  popular  vote.  Unlike  the  two  earlier  phases  which 
were  native  in  origin,  growing  out  of  purely  indigenous 
ideas  and  conditions,  this  last  is  a  conscious  imitation 
of  Swiss  institutions ;  and  it  has  usually  been  coupled 
with  the  Swiss  initiative,  whereby  a  fixed  number  of 
citizens  can  propose  a  law  and  require  a  popular  vote 
thereon.  The  movement  has  had  a  strongly  theoreti- 
cal tinge,  and  has  been  pushed  by  associations  formed 
to  advocate  it  on  abstract  principles.  Nevertheless,  the 
real  force  that  has  given  it  momentum  with  the  public 
and  won  its  victory  in  a  number  of  states  has  been 
not  so  much  faith  in  a  democratic  creed  as  a  dissatis- 
faction with  the  existing  legislatures,  a  conviction  that 
they  are  too  largely  under  the  control  of  party  ma- 
chines allied  with  moneyed  interests. 

The  referendum  in  this  general  form  was  adopted 
first  by  South  Dakota  in  1898,  and  in  the  dozen  years 

134 


REFERENDUM   IN   THE   UNITED    STATES 

that  have  passed  since  that  date  by  Utah,  Oregon,  Ne- 
vada, IMontana,  Oklahoma,  ]\Iaine,  Missouri,  Arizona, 
Arkansas,  Colorado  and  New  Mexico — tv^^elve  states 
most  of  which  lie  in  the  newer  and  less  populous  parts 
of  the  country  and  have  limited  the  sessions  of  their 
legislatures  to  very  brief  periods.  As  yet  It  is  too  early 
to  say  what  the  effect  of  the  institution  will  be.  A  gen- 
eration must  pass  before  that  can  be  determined;  but 
the  use  that  has  actually  been  made  of  the  general  ref- 
endum  in  the  few  years  during  which  it  has  been  in 
operation  is  not  the  less  interesting. 

Although  direct  popular  legislation  was  established 
in  South  Dakota  a  dozen  years  ago,  it  was  used  first, 
and  has  been  used  far  more  freely,  in  Oregon.  No 
other  state,  indeed,  made  any  use  of  it  until  1908;  and 
in  Oregon  the  popular  votes  under  the  new  provisions 
have  been  three  times  as  numerous  as  those  in  all  the 
other  states  combined.  But  in  making  this  statement 
it  is  necessary  to  discriminate  between  the  different 
kinds  of  direct  legislation.  In  Switzerland  the  initia- 
tive has  been  used  little,  and  rarely  with  success;  and, 
save  in  Oregon,  that  has  been  the  case  in  the  American 
states.  As  yet  they  have  put  it  in  operation  only  half 
a  dozen  times ;  and  the  measures  proposed  have  always 
been  rejected.  But  in  Oregon  it  has  been  used  in  the 
last  eight  years  for  no  less  than  forty-eight  measures, 
including  constitutional  amendments;  and  twenty-five 
of  them  have  been  adopted.  The  referendum,  on  the 
other  hand,  has  been  hitherto  less  of  an  Oregonian 
monopoly.     That  state  has  referred  to  popular  vote, 

135 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

either  by  petition  or  by  the  action  of  the  legislature 
itself  in  accordance  with  a  power  conferred  upon  it, 
nine  statutes,  whereof  four  have  been  ratified  and  five 
rejected;  while  in  the  other  states  thirteen  acts  have 
been  so  referred,  of  which  four  have  been  ratified 
and  nine  rejected. 

With  the  enormous  mass  of  legislation  in  America 
one  feels  impelled  to  ask  to  what  lengths  direct  legisla- 
tion will  ultimately  grow,  and  wdiether  a  people  that 
has  any  other  occupation  in  life  will  be  able  to  carry 
it  on  intelligently.  More  than  half  of  these  popular 
votes  occurred  last  autumn,  with  the  result  that  in  Ore- 
gon the  people  voted  upon  thirty-two  different  meas- 
ures, besides  voting  on  candidates  for  office;  and  in 
South  Dakota,  where  the  measures,  although  less  in 
number,  were  printed  in  full,  the  ballot  was  six  feet 
long  in  small  type.  Perhaps  for  this  reason  the  people, 
except  in  Oregon,  rejected  almost  everything  presented 
to  them.  In  Oregon,  however,  to  their  credit  be  it 
said,  they  were  discriminating,  accepting  nine  and  re- 
jecting twenty-three  of  the  measures  submitted.  These 
ranged  over  the  whole  ground  of  legislation — liquor 
laws,  taxation,  employers'  liability,  woman  suffrage, 
state  railroads,  good  roads,  nominations  for  office,  pro- 
portional representation,  reform  of  juries  and  judicial 
procedure,  fishing  in  Rogue  River,  the  salary  of  a 
judge,  eight  separate  bills  for  creating  as  many  new 
counties,  and  sundry  other  matters — a  programme  that 
might  overtax  Parliament  for  a  decade.  The  average 
vote  on  all  these  measures  was  nearly  three-quarters 

136 


REFERENDUM   IN   THE   UNITED    STATES 

of  that  cast  for  governor  at  the  same  time.  Equity, 
the  periodical  devoted  to  the  cause  of  direct  legislation, 
asks :  "  Now  do  you  not  think  that  Oregon,  with  her 
thirty-two  measures,  stands  vindicated  ?  "  Truly  the 
citizens  of  Oregon  are  a  remarkable  people,  and  the 
institution  they  have  brought  forth  is  an  infant  Hercu- 
les; but  whether  or  not  he  has  shown  wisdom  in  his 
cradle,  and  whether  his  presence  has  had  a  salutary 
influence  upon  the  state  economy,  are  ciuestions  on 
which  the  doctors  disagree. 

An  effort  is  now  being  made  to  extend  direct  leg- 
islation to  national  affairs.  This  has  not  hitherto  been 
done  even  in  the  case  of  amendments  to  the  federal 
constitution,  because  that  instrument  was  originally 
framed  by  delegates  from  the  several  states,  was 
adopted  by  the  states,  and  provided  for  the  ratification' 
of  amendments  by  three-quarters  of  the  states.  What- 
ever theory  may  be  held  of  the  national  sovereignty, 
there  can  be  no  doubt  that  historically  the  federal  con- 
stitution was  based  upon  the  assent  of  the  states;  and 
the  practice  has  never  been  changed.  This  can  readily 
be  understood  if  one  considers  the  improbability  that 
any  plan  for  a  closer  federation  of  the  British  Empire 
or  any  future  modification  thereof,  would  be  submitted 
for  ratification  to  a  popular  majority  of  the  Empire  as 
a  whole,  without  regard  to  the  opinion  of  the  com- 
ponent parts.  Before  a  referendum,  cither  on  consti- 
tutional amendments  or  on  ordinary  legislation,  can  be 
a|)j)lie(l  to  national  questions  in  the  United  States,  the 
principle  must  make  a  great  advance  in  public  favor. 
10  137 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

Much  has  been  said  in  England  about  the  expense 
of  a  referendum;  but  on  this  point  American  experi- 
ence is  of  httle  vakie.  both  because  the  total  cost  of 
a  poll  differs  in  different  countries,  and  because  in  the 
United  States  a  referendum  is  habitually  combined 
with  an  election  of  public  officers.  American  elections 
are  periodic,  public  officers  of  some  kind  being  chosen 
throughout  a  state  as  a  rule  every  year;  and  the  popu- 
lar vote  upon  a  legislative  measure  is  usually  taken  at 
the  same  time.  In  such  a  case  the  expense  of  the  ref- 
erendum is  merely  that  which  is  entailed  by  bringing 
the  matter  before  the  people ;  but  this  varies  greatly. 

As  to  the  bearing  of  American  experience  of  the 
referendum  upon  the  solution  of  English  problems  it 
is  difficult  to  speak.  There  is  in  England  no  sharp  dis- 
tinction between  constitutional  and  other  measures,  and 
hence  no  clearly  defined  class  of  laws  which  would  be 
regularly  submitted  to  popular  vote;  and  yet  it  is  on 
this  condition  that  the  results  of  the  American  consti- 
tutional referendum  are  based.  Those  results  have 
already  been  described,  while  the  optional  or  occasional 
referendum  on  ordinary  laws  has  not  endured  long 
enough  in  America  to  justify  any  conclusive  verdict, 
even  if  such  a  verdict  would  be  decisive  in  England. 
The  importance  of  a  referendum  there  must  depend 
chiefly  on  its  indirect  effects,  its  influence  upon  the 
responsibility  of  the  cabinet,  upon  the  relation  of  min- 
isters to  the  majority  in  the  House  of  Commons,  upon 
the  stability  of  the  party  system ;  in  short,  upon  the 
whole  structure  of  English  parliamentary  government. 

138 


CHAPTER  VI 


DIRECT   LEGISLATION   AS  AN  ALLY  OF  REPRESENTATIVE 

GOVERNMENT  ^ 


Our  fathers  founded  this  government  in  order  to 
secure  for  the  people — all  the  people — the  blessings 
of  life,  liberty  and  happiness.  They  devised  institu- 
tions and  machinery  to  that  end. 

To-day,  after  the  lapse  of  a  century  and  a  quarter, 
combinations  of  power  have  grown  up  under  these 
institutions  in  the  face  of  which,  for  multitudes  of 
our  population,  life  is  precarious,  liberty  practically 
despaired  of,  and  happiness,  except  of  a  kind  enjoyed 
by  the  Roman  proletariat  or  the  plantation  slave,  un- 
known. We  know  that  no  one  would  be  more  impatient 
of  such  conditions  than  our  revolutionary  forefathers, 
and  no  one  more  resolute  in  seeking  a  remedy.  Honor 
to  their  memory  requires  us  to  scrutinize  their  work, 
and  to  modernize  it  if  necessary,  just  as  they  modern- 
ized their  inherited  institutions. 

'By  Professor  Lewis  Jerome  Johnson,  based  uptm  an  artiele  in 
the  New  England  Magazine,  June,  1900),  and  the  Chicaj^o  Public  of 
July  30,1909,  and  later  reprinted  by  the  Massachusetts  Direct  Leg- 
islation League. 

139 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

Accordingly  we  turn  first  to  the  spirit  and  purposes 
underlying  our  institutions.  We  find  nothing  to  criti- 
cise, even  after  all  this  time.  We  can  suggest  no 
improvements  in  this  quarter.  Even  now  we  are  in- 
spired with  a  new  enthusiasm  by  the  ideals  expressed 
by  our  fathers  in  founding  this  republic,  the  ideals  so 
impressively  reaffirmed  by  Lincoln  at  Gettysburg. 

We  turn  next  to  the  details  of  their  governmental 
machinery.  Little  is  left  of  their  industrial  methods 
and  institutions,  and  perhaps  their  political  devices  too 
are  out  of  date.  If  they  are,  possibly  it  is  not  too  late 
to  supplement  them  or  replace  them  with  better.  The 
legislative  machinery  underlies  all  else.  We  observe 
that  our  lawmaking  is  entrusted  to  representative  bod- 
ies. The  make-up  of  these  bodies  is,  nominally  at 
least,  under  public  control,  but  the  output  (except 
amendments  to  state  constitutions)  is  not  even  nom- 
inally under  public  control,  except  as  such  control  may 
be  exerted  through  pressure  upon  individual  representa- 
tives. When  we  consider  the  extent  to  which  such 
pressure  is  exerted  to-day  by  the  greedy  and  highly 
organized  few,  rather  than  by  the  merely  normally 
interested  and  unorganized  many,  a  legislative  system 
which  may  have  been  safe  once  comes  to  look  decidedly 
defective. 

Further  reflection  convinces  us  that  this  lack  of 
adequate  popular  control  of  results  is  not  only  a  defect 
but  is  the  fundamental  defect  in  our  legislative  mech- 
anism. Its  correction  is  therefore  essential,  and  is  log- 
ically the  first  step  in  the  modernization  of  our  politi- 

140 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

cal  machinery.  This  done,  improved  legislation  is  as- 
sured as  fast  as  the  majority  can  agree  upon  it.  This 
done,  all  unnecessary  and  undesirable  obstacles  to  prog- 
ress will  have  been  minimized.  Until  this  is  done,  we 
have  little  reason  to  hope  for  permanently  better  con- 
ditions, except  at  an  utterly  unreasonable  cost  in  efifort 
and  delay.  The  importance  of  concentrating  attention 
upon  this  issue  is  manifest. 

The  next  question  is,  how  shall  the  public  get 
adequate  control  of  results?  The  answer  is,  we  must 
assert  our  natural  right  to  revise  the  work  of  our  rep- 
resentatives. We  must  do  this  revising  ourselves. 
There  is  no  one  else  to  do  it.  To  do  it  we  must  sup- 
plement the  existing  legislative  machinery  with  a  work- 
able, orderly,  and  properly  guarded  contrivance  to  en- 
able us  to  enact  laws,  to  veto  them,  to  amend  them  or 
to  repeal  them  by  direct  popular  vote  over  the  head  of 
legislatures  and  city  councils,  in  the  instances  when 
these  bodies  fail  to  meet  the  public  will.  In  other 
words,  we  must  considerably  extend  the  practice  of 
direct  legislation  by  the  people,  already  familiar  to  us 
in  the  New  England  town  meeting,  and  in  the  popular 
ratification  of  amendments  to  state  constitutions. 

Fortunately  the  way  to  do  this  has  been  devised 
and  tested  and  has  met  expectations  on  a  city-wide  and 
state-wide  scale.  It  involves  two  devices  developed 
in  the  last  few  decades,  the  initiative  and  the  referen- 
dum, now  included  under  the  single  term  direct  legis- 
lation. 

The  initiative  enables  the  people  to  enact  desirable 

141 


THE  INITIATIVE,    REFERENDUM   AND   RECALL 

measures  by  direct  popular  vote,  when  such  measures 
have  been  or  are  likely  to  be  ignored,  pigeon-holed, 
amended  out  of  shape,  or  defeated  by  the  legislature. 
Measures  passed  in  this  way  may  be  entirely  new  laws, 
or  they  may,  of  course,  amend  or  repeal  existing  laws. 

The  referendum  enables  the  people,  by  direct  popu- 
lar vote,  to  veto  recent  enactments  of  their  representa- 
tives. 

The  initiative  corrects  sins  of  omission. 

The   referendum  corrects  sins  of  commission. 

The  initiative  is  set  in  operation  by  volunteer 
groups  of  citizens — civic,  labor,  or  mercantile  organi- 
zations— who  draw  up  laws  which  they  think  good  for 
themselves,  or  the  public,  or  perhaps  both.  If  they  can 
get  a  certain  moderate  percentage  ^  of  the  voters  of 
the  city  or  state  to  sign  the  requisite  petition  the  meas- 
ure goes  to  the  council  or  legislature,  and  if  this  body 
refuses  to  adopt  it  within  a  specified  time  without 
amendment,  the  measure  must  be  transmitted  un- 
changed to  the  people  for  their  decision.  If  the  leg- 
islative body  thinks  it  can  produce  a  better  enactment 
to  the  same  effect,  it  may  draw  it  up  and  send  it  to 
the  people,  with  the  other,  as  a  competing  measure. 
The  voters  then  choose  between  them,  or  reject  both. 
In  some  jurisdictions,  notably  Oregon,  initiative  meas- 

^The  number  of  signatures  required  in  these  petitions  ranges,  in 
different  states  from  five  to  eight  per  cent,  of  the  voters  for  initia- 
tive petitions  for  ordinary  laws;  from  eight  to  fifteen  per  cent,  for 
initiative  petitions  for  constitutional  amendments;  and  from  five 
to  ten  per  cent,  for  referendum  petitions.  The  usual  percentages 
are  eight  for  initiative,  and  five  for  referendum  petitions. 

142 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

ures  go  directly  to  the  people  without  previous  sub- 
mission to  the  legislature.  Other  modifications  in  de- 
tail may  be  expected  as  time  goes  on. 

The  referendum,  likewise  upon  petition,  brings 
newly  passed  legislation  to  the  popular  tribunal  for 
veto  or  confirmation. 

The  need  of  interference  with  the  work  of  the  rep- 
resentatives is  greatly  reduced  by  the  mere  existence 
of  the  system,  and  the  number  of  laws  actually  coming 
to  popular  vote  is  a  small  fraction  of  the  whole. 

Direct  legislation  is  likely  to  result,  before  being 
long  in  operation,  in  the  establishment  of  the  recall, 
which  is  the  properly  guarded  power  of  removal  of 
unsatisfactory  ofiiceholders  before  the  expiration  of 
their  terms.  Thus  the  people  gain  the  power  of  re- 
moval, the  logical  supplement  to  their  already  exist- 
ing power  of  election. 

The  recall,  though  obviously  a  device  indispensable 
for  popular  control  and  usually,  in  city  charters,  es- 
tablished simultaneously  with  direct  legislation,  will 
not  be  discussed  further  here.  It  should  be  looked 
upon  as  one  of  the  numerous  desirable  but  subordinate 
measures,  like  preferential  voting,  direct  nominations, 
and  the  short  ballot,  which  may  safely  be  left  to  be 
gained  by  subsequent  enactment  in  the  larger  jurisdic- 
tions like  our  states.  This  is  strikingly  true  in  Massa- 
chusetts where  the  recall  has  been  suggested,  if  not 
actually  authorized  by  the  constitution  since  its  adop- 
tion in  1780,  as  will  be  seen  from  article  VIII  of  that 
constitution,  and  could,  possibly,  unlike  the  initiative 

143 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

and  referendum,  be  made  operative  without  constitu- 
tional amendment. 

The  initiative  and  referendum,  as  now^  advocated, 
carry  with  them,  of  course,  adequate  and  systematic 
means,  independent  of  the  newspapers,  of  furnishing 
each  voter  the  full  text  of  the  measures  to  be  voted  on ; 
the  condensed  form  in  which  they  will  be  printed  on 
the  ballot ;  statement  of  the  reasons  for  and  against 
each  measure ;  and  the  names  of  those  behind  each 
proposition. 

In  Oregon,  the  secretary  of  state  edits  this  informa- 
tion and  mails  it  in  pamphlet  form  to  each  voter  in  the 
state  fifty-five  days  before  election.  At  least  eight 
weeks  have  elapsed  by  that  time  since  the  circulation 
and  filing  of  the  petitions.  This  is  found  to  afYord 
ample  time  for-  deliberation  and  discussion,  and  the 
pamphlet  provides  an  adequate  basis  for  decisions. 
Those  who  wish  to  insert  arguments  in  this  pamphlet 
pay  the  cost  of  paper  and  printing — some  eighty  dol- 
lars per  page — and  the  state  bears  the  rest  of  the  cost 
of  the  pamphlet  and  its  distribution.  In  initiative  cases, 
supporting  arguments  are  accepted  from  none  but  duly 
accredited  representatives  of  the  friends  of  the  meas- 
ure ;  any  one  who  will  pay  the  cost,  however,  may  in- 
sert arguments  against  such  a  measure.  In  referendum 
cases  arguments  upon  either  side  may  be  inserted  by 
any  one  willing  to  pay  the  cost.  In  the  election  of 
June,  1910,  when  thirty-two  measures  were  acted 
upon  by  the  electorate,  the  state  pamphlet  was  a  docu- 
ment of  two  hundred  octavo  pages.     Oregon  voters 

144 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

protect  themselves  still  further  from  false  or  mislead- 
ing campaign  literature  by  a  provision  of  their  admir- 
able Corrupt  Practices  Act — a  comprehensive  measure 
based  on  English  practice,  which  came  from  the  peo- 
ple by  the  initiative — which  prescribes  a  heavy  penalty 
for  circulating  political  literature  without  the  names  of 
its  authors  and  publishers. 

In  Oklahoma,  there  is  a  state  pamphlet  for  inform- 
ing voters  as  in  Oregon,  but  with  some  interesting  dif- 
ferences in  detail.  In  Oklahoma,  as  is  proposed  in 
Massachusetts,  initiative  measures  go  first  to  the  legis- 
lature. Hence  all  popular  voting  is  upon  measures 
which  have  had  recent  legislative  action.  A  joint  com- 
mittee of  house  and  senate  is  therefore  naturally  called 
upon  to  prepare  the  arguments  supporting  the  legisla- 
ture's position.  The  opposing  argument  is  drawn  up 
by  a  committee  representing  the  petitioners.  The  ar- 
guments for  each  side  of  each  measure  is  restricted 
by  the  Oklahoma  law  to  two  thousand  words,  one- 
fourth  of  which  may  be  in  answer  to  opponents'  argu- 
ments. The  direct  argument  on  each  side  is  prepared 
and  submitted  to  the  secretary  of  state,  who  transmits 
it  to  the  opposing  side  to  serve  as  the  basis  for  the 
rebuttal  just  mentioned  and  thus  complete  the  argu- 
ment. These  arguments  on  all  the  questions  are  then 
assembled  in  the  state  pamphlet  and  distributed  to  all 
the  voters  of  the  state  a  suitable  number  of  weeks 
before  the  election.  The  cost  of  printing  and  distri- 
bution is  borne  by  the  public  treasury.  The  Oklahoma 
plan  has  some  striking  merits.     It  requires  the  legisla- 

145 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

tiire  to  state  the  reason  for  the  action  which  it  has 
taken.  Doubtless  this  reason  is  often  good  and  sufifi- 
cient,  but  perhaps  more  certainly  so  when  the  law- 
makers know  in  advance  that  they  may  have  to  de- 
fend their  position.  The  legislature's  views  on  the 
measure  should  be  of  great  value  to  the  voters. 

More  important  still,  it  ensures  the  presentation 
of  a  negative  argument.  Experience  in  Oregon  has 
already  shown  that  a  negative  argument  is  not  always 
forthcoming  when  left  to  be  supplied  by  volunteers. 
A  campaign  of  silence  is  sometimes  wisely  preferred 
by  interests  at  whom  an  initiative  measure  is  aimed 
to  the  revelation  of  weakness  which  would  result  from 
a  formal  attempt  at  defence.  They  well  know  that 
voters  are  likely,  from  sheer  force  of  habit,  thought- 
lessly to  concede  more  in  the  defence  of  a  long-estab- 
lished wrong  than  its  beneficiaries  would  dare  claim 
for  it.  The  Oklahoma  plan  of  informing  voters  re- 
quires each  side  to  show  its  hand.  Bluffing  is  elimi- 
nated. Privilege  has  to  come  out  in  the  open  and  state 
such  case  as  it  has.  Silent  contempt  is  not  permitted 
to  do  duty  as  argument.  Both  the  Oregon  and  the 
Oklahoma  systems  of  disseminating  information  do 
much  to  forestall  the  misleading  of  voters  through  the 
newspapers.  Some  expense  is  involved,  but  this  point 
is  not  apt  to  be  pressed  except  by  those  opposed  to  the 
whole  system  on  other  grounds.  The  body  of  voters 
well  understand  that  one  bad  law  or  one  carelessly 
granted  franchise  may  cost  the  public  in  actual  dollars 
and  cents  many  times  the  cost  of  the  state  pamphlet, 

146 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

Supplemented  by  the  initiative  and  referendum,  to 
serve  as  a  permanent  background  and  for  application 
when  called  for,  the  representative  system  will  gradu- 
ally but  surely  enter  upon  a  period  of  honor  and  use- 
fulness hitherto  never  surpassed  and  probably  never 
equaled.  Relieved  of  the  unnatural  excess  of  power 
under  which  they  now  stagger  and  sometimes  fall,  legis- 
lative bodies  will  cease  to  be  attractive  objects  for  brib- 
ery and  secret  influence.  Log-rolling  will  greatly  dim- 
inish. The  power  of  bosses  and  rings  will  be  under- 
mined. Seats  in  the  legislatures  will  then  begin  to  be 
unattractive  to  grafters.  At  the  same  time  they  will 
become  more  attractive  to  high-minded,  public-spirited 
citizens.  There  will  be  a  fairer  chance  that  a  man 
clean  when  elected  will  stay  clean.  It  will  make  it  safe 
to  reduce  the  size  of  legislatures  and  to  diminish 
greatly  the  number  of  elective  ofificers.  The  party  ma- 
chines and  bosses  once  permanently  out  of  control,  we 
may  reach  the  point  of  competing  successfully  with  the 
corporations  in  attracting  the  best  young  talent  to  the 
public  service. 

With  direct  legislation  in  vogue,  it  is  not  necessary 
to  retire  a  faithful  legislator  to  express  disapproval 
of  some  of  his  measures.  The  electorate,  while  re- 
turning the  man  to  office,  can  overrule  the  measures 
with  no  more  reflection  on  his  honor  or  usefulness 
than  is  involved  in  the  overruling  of  a  lower  court  by 
a  higher.  Honest  and  able  rei)resentatives  are  hence 
likely  to  be  repeatedly  reelected.  Long  tenure  is  as 
valuable  to  public  as  to  private  business.     Where  the 

147 


^ 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

people  have  been  in  control  long  enough  for  this  result 
to  show,  as  in  Switzerland  and  in  the  New  England 
towns,  they  are  seen  to  act  upon  this  principle.  In 
Switzerland  it  is  rare  that  a  new  member  appears  in 
a  legislative  body  except  to  fill  a  vacancy  due  to  death 
or  voluntary  retirement.  In  New  England  towns  it 
is  common  for  faithful  officials  to  be  retained  in  office 
practically  for  life,  their  annual  reelections  being  fre- 
quently uncontested.  With  a  seat  in  the  legislature 
thus  robbed  of  its  charms  for  all  but  the  public-spirited, 
and  with  reelection  practically  assured  to  men  of 
proved  merit,  real  legislative  experts  in  good  number 
may  gradually  be  developed,  and  may  yield  good 
service. 

In  view  of  such  untested  possibilities,  it  is  beside 
the  mark  to  wonder  whether  representative  govern- 
ment is  a  failure.  We  begin  to  realize  that  it  has  not 
yet  been  fairly  tried,  at  least  not  in  recent  years.  We 
realize  that  our  legislators  have  been  working  under 
almost  intolerable  conditions.  They  have  been  con- 
tinually exposed  to  temptations  that  no  ordinary  man 
ought  to  be  asked  to  face,  and  it  is  a  tribute  to  human 
nature  that  so  many  of  our  legislators  have  stayed 
straight.  With  the  initiative  and  referendum  in  force 
legislators  will  have  all  the  power  that  is  ever  ac- 
corded to  representatives  and  agents  in  business, 
which  is  all  that  is  wholesome  or  attractive  to  worthy 
citizens  of  a  democratic  republic.  That  final  enacting 
power  is  far  from  essential  to  the  dignity  of  a  legisla- 
tive body  is  shown  by  the  universal  respect  in  which 

148 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

our  American  constitutional  conventions  have  always 
been  held. 

While  a  sufficiency  of  power  is  thus  left  with  the 
representatives,  a  salutary  increase  of  responsibility 
is  thrown  upon  the  voter.  It  brings  him,  to  some  pur- 
pose, into  closer  touch  with  great  affairs.  It  enables 
him  to  vote  for  measures  apart  from  men,  and  for  men 
apart  from  measures.  He  can  begin  to  assume  the 
stature  of  a  man.  to  become  a  sovereign  in  fact  as 
well  as  in  fancy.  It  will  enable  him  to  settle  some- 
thing at  an  election  besides  the  party  label  of  office- 
holders, which  in  turn  settles  little  except  which  fac- 
tion shall  dispense  the  spoils  of  office.  For  we  know 
only  too  well  that  platforms  are  "  merely  to  get  in  on, 
not  to  ride  on."  Even  if  they  were  expected  to  be 
observed,  platforms  are  composites  which  rarely  rep- 
resent, except  in  the  roughest  w^ay,  the  views  of  any 
one  thoughtful  voter. 

The  new  task  proposed  for  the  voter,  though  in- 
spiring, is  relatively  simple.  It  differs  widely  from 
legislation  in  the  ordinary  sense.  The  originating  and 
drafting  of  bills  can  manifestly  never  fall  as  a  burden 
on  the  mass  of  the  voters.  For  this  service  the  com- 
munity can  always  command  ability  as  wise,  as  disin- 
terested and  as  practiced  in  legislation  as  any  who  now 
do  such  work.  The  average  voter's  part  in  the  work 
is  deliberation,  discussion  and  the  registry  of  his  de- 
cision. This  is  no  new  task  for  him ;  the  only  novelty 
is  in  having  a  chance  to  do  it  intelligently,  and  to  see 
his  decision  go  into  effect. 

149 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

The  voter,  going  into  the  booth,  has  known  for 
months  just  what  is  coming  up  and  in  just  what  form 
it  is  coming  up.  There  is  no  thought  of  possible 
amendment.  With  regard  to  each  measure  he  has  sim- 
ply to  approve  or  reject.  He  has  had  plenty  of  time 
to  make  up  his  mind.  If  a  measure  is  objectionable 
in  purpose  or  form,  or  is  lacking  in  clearness,  he  will 
of  course  reject  it  and  await — or  cause — its  reappear- 
ance in  a  more  acceptable  form  at  a  subsequent  elec- 
tion. The  voter  is  thus  more  like  a  juror  than  like  a 
legislator.  His  capacity  for  intelligent,  discriminating 
work  at  a  single  election  is  therefore  large — much 
larger,  as  experience  shows,  than  at  first  thought  might 
seem  possible. 

In  1909,  for  example,  the  voters  of  Portland,  Ore- 
gon, in  a  city  election,  besides  voting  for  mayor  and 
other  officers,  voted  discriminatingly  and  with  sus- 
tained interest  on  thirty-five  measures,  thirteen  of 
which  they  passed.  The  average  vote  on  each  of  the 
thirty-five  measures  was  slightly  over  eighty-one  per 
cent,  of  the  total  vote  for  mayor,  with  a  range  from 
seventy-five  per  cent,  to  ninety  per  cent.  The  majori- 
ties, both  yes  and  no,  were  sometimes  heavy,  some- 
times light.  There  is  every  evidence  that  the  voting 
in  each  case  reflected  the  calm  judgment  of  the  voters. 
In  Denver,  in  the  election  of  May,  19 10,  the  voters, 
besides  electing  city  officers,  dealt  discriminatingly 
with  a  list  of  twenty-one  measures,  some  of  them 
trickily  worded.  Moreover,  in  this  case,  they  had  to 
face  an  enormous  corruption   fund   and  all  that  the 

ISO 


ALLY   OF   REPRESENTATIVE   GOVERXMENT 

combined  party  machines  and  selfish  interests  could 
do  to  mislead.  The  result  was  a  triumph  for  the  peo- 
ple at  every  significant  point.  The  people's  capacity 
for  direct  legislation  is  not  likely  to  be  subjected  to 
severer  tests  than  it  has  already  stood  with  signal 
success. 

Through  direct  legislation,  the  state  will  ofifer  an 
attractive  field  of  usefulness  for  such  of  her  citizens 
as  do  not  care  to  give  up  their  whole  time  to  public 
life.  Public-spirited  citizens,  without  dislocation  of 
business  or  profession,  may  and  will  devote  a  much 
larger  share  of  their  time  than  now  to  the  considera- 
tion of  public  questions.  If  they  conceive  of  a  desira- 
ble step  in  legislation,  they  wnll  not  have  to  contrive 
to  get  into  office  and  to  stay  there  long  enough  to  ac- 
complish their  ends.  They  have  a  dignified  and  honor- 
able method  of  presenting  to  the  final  authority,  for 
adoption  or  rejection,  the  best  fruits  of  their  labors, 
free  from  the  risk  of  mutilation  or  distortion  by  ill- 
informed,  overworked,  or  corrupt  legislatures.  This 
alone  would  be  a  powerful  means  of  bringing  sponta- 
neously to  the  public  service,  and  at  no  expense,  a  large 
amount  of  talent  of  the  best  possible  sort  for  which 
there  is  now  little  encouragement  in  public  life.  This 
is  the  talent  on  which  we  should  depend  for  the  most 
serious  lawmaking,  and  which  we  now  have  little 
chance  to  utilize.  The  legislature  will  thus  be  facing  a 
reasonable  and  wholesome  competition  and  the  public 
cannot  fail  to  profit  from  it. 

Sometimes    officeholders    or    party    machine    men 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

profess  a  great  fear  that  direct  legislation  will  result  in 
"  mob  rule."  This  must  be  taken  to  mean  that  they 
fear,  probably  with  reason,  that  the  people,  after  weeks 
of  deliberation  and  with  adequate  information,  would 
not  support  their  pet  schemes.  Prospective  abundance 
of  popular  majorities  in  their  favor  would  neither 
excite  their  alarm  nor  be  called  by  them  "  mob  rule." 
No ;  mob  action  finds  a  more  promising  field  in  nomi- 
nating conventions  and  even  town  meetings,  than  in 
the  long  process  of  gathering  signatures,  w^eeks  of 
discussion  and  deliberation,  and  the  quiet  vote  on  an 
Australian  ballot  in  isolated,  individual  booths. 

Direct  legislation  is  not  only  a  safeguard  against 
mob  rule,  but  against  the  only  thing  likely  with  us  to 
lead  to  violent  revolution,  namely,  machine  rule  for  the 
benefit  of  the  privileged  few.     Majority  rule  precludes 
both  mob  rule  and  machine   rule,   for  majority  rule 
brings  into  play  the  great  patient  mass  of  honest,  hard- 
working citizens,  ordinarily  silent  and  little  felt.   They 
abhor  alike  the  violent  methods  of  the  mob  and  the 
intriguing  of  "  politics."     No  less  do  they  shrink  from 
making  themselves  individually  conspicuous  in  hope- 
lessly protesting  against  powerful  wrongs  which  they 
can,  though  they  ought  not,  endure.     They  are  likely 
to  suffer  in  silence  until  driven  to  extremes,  rather 
than  seek  relief  through  the  distasteful  and  inadequate 
means  now^  at  their  disposal.     To  provide  the  people 
with  orderly  and  regular  means  of  expressing  them- 
selves on  equal  terms  with  all  their  neighbors,  with  the 
certainty  that  their  will  thus  expressed  will  take  effect, 

IS2 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

is  the  logical  way  to  ensure  the  healthy  and  natural 
progress  whicli  in  the  long-  run  is  the  only  preventive 
of  violent  upheaval. 

An  additional  advantage  in  direct  legislation  is  the 
education  which  it  affords  the  average  voter.  One 
cannot  help  believing  that  the  consequent  toning--up  of 
the  public  standard  of  thought  and  morals  would  be 
in  the  long  run  the  most  important  feature  of  the  sys- 
tem. Direct  legislation  tends  thus  automatically  to 
produce  a  highly  trained  and  self-respecting  electorate, 
and  to  lay  the  deepest  and  most  promising  foundation 
for  permanent  good  government.  Direct  legislation 
is  the  only  orderly  means  known  for  accurately  and 
unmistakably  expressing  the  public  will  as  to  legisla- 
tion, and  for  making  it  prevail.  It  gives  at  last  a  fair 
approach  to  a  proper  and  worthy  means  of  registering 
public  sentiment,  well  defined  by  some  one  as  "  the 
deliberate  and  reasonetl  judgment "  of  the  people.  It 
is  as  effective  a  balance  wheel  against  mere  popular 
clamor  as  it  is  a  safeguard  against  the  silent  scheming 
of  the  crafty  few.  Direct  legislation  thus  opens  for 
the  first  time  a  fair  prospect  for  the  early  realization 
<»f  the  cherished  American  ideal — a  government  by  as 
well  as  of  and  for  the  people. 

The  direct  legislation  idea  is  no  novelty  among 
free  peoples.  It  mgy  be  seen  in  the  institutions  of  the 
Plymouth  Colony.  It  appears  in  our  time-honored 
New  England  town  meeting  and  the  even  more  ancient 
Swiss  Landesgeincindc,  and  German  folk-moot,  all  of 
them  perfect  exemplifications  of  the  direct  legislation 
11  153 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

principle  on  a  small  scale.  It  appears  in  our  popular 
ratification  of  state  constitutions  and  their  amend- 
ments, usually  insisted  upon  from  the  first,  in  spite  of 
the  pitifully  inadequate  facilities  of  our  early  days. 

More  recently,  we  note  the  steady  extension  of 
direct  legislation  through  the  initiative  and  referen- 
dum from  canton  to  canton  in  Switzerland,  its  applica- 
tion to  Swiss  federal  legislation — the  referendum  in 
1874  and  the  initiative  for  constitutional  amendments 
in  1 89 1 — and  its  adoption  in  the  last  decade  by  city 
after  city  and  state  after  state  in  this  country.  Direct 
legislation  (usually  accompanied  from  the  start  by  the 
recall)  is  an  essential  feature  of  nearly  all  modern  city 
charters,  and  those  without  it  will  doubtless  have  to 
add  it  sooner  or  later  to  get  satisfactory  results.  Nota- 
ble among  the  direct  legislation  cities  stand  Lus  An- 
geles, Des  Moines,  Haverhill  and  Gloucester,  and 
the  newest  recruits,  Berkeley,  California,  Colorado 
Springs,  Grand  Junction,  Colorado,  and  Burlington, 
Iowa.  Similar  examples  among  the  states  are  South 
Dakota  since  1898,  Oregon  since  1902,  Montana  since 
1906,  Oklahoma  since  1907,  Maine  and  Missouri  since 
1908,  Arkansas  and  Colorado  since  19 10,  and  Arizona 
and  California  in  191 1. 

For  examples  of  the  effect  of  direct  legislation,  we 
naturally  turn  first  to  Switzerland^,  where  it  has  been 
in  operation  on  what  may  be  called  a  large  scale  for 
fifty  to  eighty  years.  With  the  aid  of  direct  legisla- 
tion as  a  result  of  its  moral  influence  as  well  as  by  its 
direct  application,  Switzerland  has,  wherever  she  has 

154 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

applied  if.  rid  herself  of  the  misrule  and  exploitation 
which  were  previously  rami)ant,  as  they  had  heen  for 
centuries,  in  all  except  the  minute  but  ultra-democratic 
cantons.^  Thanks  to  sound  democratic  idealism,  sup- 
ported by  suitable  machinery  for  its  expression,  she 
has  now  come  to  be  an  admirably  governed  country. 
Mr.  James  Bryce,  the  present  British  ambassador  to 
the  L^nited  States,  declared  to  a  Cambridge  audience 
in  1904  that  Switzerland  is  the  most  successful  de- 
mocracy that  the  world  has  ever  seen. 

Further  expert  testimony  to  what  is  generally 
known  and  admitted  by  the  well-informed  and  disin- 
terested is  hardly  needed,  but  the  Xew  International 
Encyclopedia,  in  its  article  on  Switzerland,  expresses 
it  so  naively  that  it  may  be  worth  citing.  After  a 
lengthy  account  of  the  civil  wars  and  political  turmoil 
in  the  early  part  of  the  nineteenth  century,  it  disposes 
of  the  rest  of  the  century  with  the  single  remark  that 
"  the  history  of  Switzerland  for  the  past  quarter  of  a 
century  has  been  very  uneventful,  though  marked  by 
a  steady  material,  intellectual  and  political  growth." 

All  this  does  not  mean  that  Switzerland  is  an  un- 
alloyed paradise.  Some  of  the  great  human  problems 
seem  as  far  from  solution  in  Switzerland  as  elsewhere. 
It  does  mean  that  the  government  promptly  reflects 
public  sentiment,  and  at  the  same  time  is  free  from 

» It  is  to  these  little  cantons  including  less  then  ten  per  cent,  of 
the  area  and  less  than  seven  per  cent,  of  the  population  of  the  present 
whole  country  that  Switzerland  owes  her  otherwise  quite  undeserved 
reputation  for  century-old  free  political  institutions. 

155 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

violent  fluctuations  of  policy.  It  means  that  the  gov- 
ernment is  administered  efiiciently  and  in  the  interest 
of  the  public  good.  It  means  that  Switzerland,  with 
a  form  of  government  modeled  largely  upon  our  own, 
by  a  modification  which  might  have  been  suggested  by 
our  Declaration  of  Independence,  has  secured  good 
government  in  a  democratic  republic. 

The  excellent  results  in  Switzerland  are  to  be  seen 
not  only  in  her  federal  afifairs,  but  also  in  the  affairs 
of  an  overwhelming  majority  of  her  cantons.  We 
must  not,  however,  overlook  Canton  Fribourg,  the 
only  one  of  the  twenty-two  Swiss  cantons  as  yet  una- 
ble to  equip  herself  with  the  initiative  and  referendum. 
She  has  still  the  unperfected  or  "  pure  "  representative 
system  characteristic  of  our  American  states  and  cities 
and  of  the  old  times  in  the  rest  of  Switzerland.  This 
brings  with  it,  there  as  here,  boss  rule  and  all  that 
boss  rule  implies.  The  legislative  body  is  nominated 
by  the  boss,  elected  by  the  people  and  managed  by  the 
boss.  Prominent  citizens  are  skillfully  kept  in  line  by 
a  share  in  the  plunder  for  themselves  or  for  their 
churches  or  philanthropies,  or  by  fear  of  loss  of  favor 
with  the  two  chief  banks,  both  creatures  of  the  boss. 
There  is  bribery,  extravagance,  subordination  of  the 
general  interest  to  private  business,  the  heaviest  per 
capita  cantonal  debt  in  Switzerland,  and  the  public 
apathy  which  naturally  follows  widespread  hopeless- 
ness. The  agitation  for  the  initiative  and  referendum 
is  still  kept  up  by  Fribourg  patriots  as  their  only  hope, 
but  all  orderly  means  of  success  are  in  the  control  of 

is6 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

the  boss  who,  of  course,  fights  them  and  will  fight 
them  for  his  political  life.^ 

As  a  contrast  to  Fribourg,  it  should  be  observed 
that  the  chief  cantons  of  Switzerland,  Berne  and  Zu- 
rich, the  former  a  farming,  the  latter  a  manufacturing 
canton,  both  far  in  the  lead  of  their  neighbors  in  pop- 
ulation and  importance,  are  among  the  cantons  having 
the  initiative  and  referendum  in  their  most  radical  and 
readilv  workable  form.  Zurich  is  clearly  the  most 
advanced  of  the  cantons  in  this  respect,  and  Berne  is 
surpassed,  and  at  that  only  slightly,  by  few  besides 
Zurich.  In  short,  where  the  initiative  and  referendum 
are  most  readily  set  in  motion,  there  have  developed 
clean  government  and  leadership  in  civic  and  indus- 
trial growth.  In  the  only  canton  where  there  is  neither 
the  initiative  and  referendum  nor  pure  democracy, 
there  is  misrule  and  political  apathy  of  the  familiar 
American  type. 

The  Swiss  success  under  perfected  representative 
government  may  reasonably  be  expected  to  be  repeated 
in  this  country,  for  the  strength  of  the  system  lies  in 
giving  common  human  nature  a  fair  chance  to  do  itself 
justice.  Human  nature  in  Switzerland  is  very  much 
like  that  elsewhere.  That  it  is  like  tliat  in  tliis  coun- 
try is  to  be  seen  from  the  fact  that  representative  gov- 

»  This  bit  of  evidence  from  Fribourg  is  drawn  from  an  article  en- 
titled "The  Only  Political  Boss  in  Switzerland, "by  George  Judson 
King,  Secretary  of  the  Ohio  Direct  Legislation  League,  in  the  Twen- 
tieth Century  Magazine  for  July,  19 lo.  The  article  is  based  on  recent 
personal  observations  in  Canton  Fribourg. 

I.S7 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

ernment  without  direct  popular  control  results  in  de- 
moralization and  bad  government  there  just  as  it  does 
here,  and  in  just  the  same  way  there  as  it  does  here. 

It  is  sometimes  suggested,  however,  that  little 
Switzerland,  good  as  her  results  are  conceded  to  be,  is 
not  an  adequate  precedent  for  an  immense  nation  like 
the  United  States.  But  a  small  nation  may  exemplify 
a  principle  essential  to  the  success  of  a  large  nation. 
A  sound  fundamental  principle  holds  regardless  of  the 
scale  of  the  enterprise.  That  a  self-governing  people 
must  have  effective  control  over  the  laws  under  which 
they  live  would  seem  to  be  a  principle  of  this  kind. 
Details  may  require  adjustment,  but  the  principle  will 
hold.  But  all  that  aside,  the  important  comparison  is 
not  so  much  with  our  nation  as  with  our  cities  and 
states.  Switzerland,  unhomogeneous  in  population, 
preeminently  a  manufacturing  nation,  larger  than 
Massachusetts,  Rhode  Island  and  Connecticut  com- 
bined, with  a  population  slightly  larger  than  that  of 
Massachusetts,  is  plainly  an  excellent  precedent  for 
the  adoption  of  direct  legislation  by  individual  Amer- 
ican cities  and  states. 

Moreover,  there  may  never  be  need  for  a  federal 
initiative  and  referendum  system  for  this  country. 
With  the  rings  once  permanently  ousted  from  our 
cities  and  states,  the  federal  government  should  auto- 
matically run  clear.  For  the  rings  that  do  the  plun- 
dering at  Washington  could  manifestly  not  long  sur- 
vive without  their  intrenchments  in  the  cities  and 
states.    At  any  rate,  it  is  obviously  correct  tactics  now 

158 


ALLY   OF    REPRESENTATIVE   GOVERXAIENT 

to  go  right  ahead  for  the  initiative  and  rcferendnm  in 
states  and  cities.  Onr  only  disappointments  with  it, 
jndging  by  experience  elsewhere,  are  likely  to  arise 
from  excessive  restrictions  which  the  legislatures  may 
impose  upon  it. 

New  England,  the  home  of  the  town  meeting,  en- 
joying the  inspiration  of  the  Massachusetts  and  other 
Xew  England  states  constitutions,  with  Maine  already 
in  the  direct  legislation  ranks,  may  be  expected  to  take 
especially  kindly  to  this  new  and  long  step  toward  the 
realization  of  her  ancient  ideals. 

The  real  questions  for  us  in  New  England  to 
answer  are : 

1.  Are  we  noic  as  fit  for  this  forward  step  as  the 
Swiss  li'cre  when  they  were  putting  the  system  in 
operation  thirty  to  fifty  years  ago? 

2.  Is  not  even  a  complicated  law,  properly  ex- 
plained and  vouched  for,  as  suitable  a  thing  for  a  popu- 
lar vote  as  a  choice  between  complicated  candidates 
whose  actions  no  one  can  foresee? 

3.  Is  not  an  occasional  vote  on  an  ordinary  law  a 
natural  and  reasonal)le  addition  to  our  time-honored 
system  of  po]:)ular  votes  on  state  constitutions  and  their 
amendments? 

4.  Is  it  not  worth  while  to  disentangle  measures 
from  men  and  submit  to  popular  vote  definite  and  dis- 
tinct propositions  instead  of  mixtures  of  candidates, 
parties  and  platforms? 

To  ask  these  questions  in  America  is  to  answer 
them  in  the  affu'm.ative,     All  parts  of  the  country  are 

?59 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

coming  to  see  the  point.  Oregon,  nearly  half  as  large 
again  as  all  New  England  combined,  is  setting  us  a 
most  encouraging  example.  Seven  years  ago  she 
adopted  direct  legislation.  She  was  then  deep  in  politi- 
cal corruption.  Thanks  to  the  initiative,  and  measures 
secured  with  it  which  legislatures  had  refused  to  pass, 
she  has  made  great  progress  toward  better  government 
and  the  house-cleaning  is  going  right  on.^  The  outcries 
of  the  local  plunderers  show  that  they  feel  their  power 
slipping  away.  Their  intrigues  for  the  destruction  of 
the  initiative  and  referendum  show  that  they  know  the 
cause. 

We  shall  be  interested  to  see  how  direct  legislation 
fits  in  with  the  ideas  of  our  wonderfully  far-sighted 
and  successful  constitution  framers.  It  will  be  worth 
while  to  quote  a  few  passages  from  the  constitution  of 
the  commonwealth  of  Massachusetts — the  oldest  of 
their  works — the  spirit  of  which  is  no  stranger  in  other 
parts  of  the  country.  Articles  V,  VII,  and  VIII  of 
that  honored  document  will  give  the  ideas  of  the  fa- 
thers on  the  relation  of  the  people  to  their  representa- 
tives. 

"  Article  V.     All  power  residing  originally  in  the 

>  See  the  speech  of  Senator  Bourne  of  Oregon  in  the  United  States 
Senate,  May  5,  1910  (obtainable  from  the  Massachusetts  Direct  Leg- 
islation League),  for  an  extended  description  of  this  remarkable 
work.  Senator  Bourne,  a  Republican  and  by  birth  a  Massachu- 
setts man,  and  his  colleague,  Senator  Chamberlain,  a  Democrat, 
born  in  Mississippi,  are  alike  active  advocates  of  the  initiative  and 
referendum  after  observing  its  eight  years  of  operation  in  their  home 
state. 

i6q 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

people,  and  bcin<;'  derived  from  them,  the  several  mag- 
istrates and  officers  of  government,  vested  with  author- 
ity, whether  legislative,  executive,  or  judicial,  are  their 
substitutes  and  agents,  and  are  at  all  times  accountable 
to  them. 

"  Art.-  VII.  Government  is  instituted  for  the  com- 
mon good ;  for  the  protection,  safety,  prosperity,  and 
happiness  of  the  people ;  and  not  for  the  profit,  honor, 
or  private  interest  of  any  one  man,  family,  or  class  of 
men :  Therefore  the  people  have  an  incontestable,  un- 
alienable, and  indefeasible  right  to  institute  govern- 
ment ;  and  to  reform,  alter  or  totally  change  the  same, 
when  their  protection,  safety,  prosperity  and  happiness 
require  it. 

'*  Art.  VIII.  In  order  to  prevent  those  who  are 
vested  with  authority  from  becoming  oppressors,  the 
people  have  a  right,  at  such  periods  and  in  such  man- 
ner as  they  shall  establish  by  their  frame  of  govern- 
ment, to  cause  their  public  officers  to  return  to  private 
life ;  and  to  fill  up  vacant  places  by  certain  and  regular 
elections  and  ap|)ointments." 

On  reading  these  sturdy  New  England  doctrines 
one  must  conclude  that  the  only  reason  why  the  fathers 
did  not  then  and  there  establish  direct  legislation  for 
the  state  and  for  cities  as  they  might  develop,  was  that 
it  was  at  that  time  physically  impossible.  Mechanical 
invention  had  not  advanced  far  enough  to  permit  it 
even  if  they  had  conceived  the  idea.  We  must  not 
forget  that  their  facilities  for  disseminating  informa- 
tion and  gathering  returns  were  little  superior  to  those 

i6i 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

of  Julius  Cresar.  They  knew  no  more  of  railways  than 
C^sar  did,  such  highways  as  they  had  were  not  so 
good  as  Caesar's.  But  they  resolutely  did  all  that  was 
practicable  under  the  mechanical  conditions  of  'their 
time.  They  provided  an  obligatory  referendum  on 
the  adoption  and  amendment  of  the  constitution  of 
the  commonwealth,  even  though  it  might  and  did  take 
weeks  to  put  the  matter  to  vote  and  get  the  returns. 
And  it  is  clear  that  nothing  was  further  from  their 
minds  than  that  the  will  of  representatives  should  pre- 
vail over  the  will  of  the  people,  some  modern  office- 
holders to  the  contrary  notwithstanding. 

Now  that  direct  legislation,  as  a  working  insti- 
tution on  a  large  scale,  has  become  a  possibility 
through  the  introduction  of  the  modern  means  of 
spreading  news  and  ideas  by  the  telegraph,  high-speed 
printing  press,  and  the  railway,  we  can  proceed  from 
the  point  where  the  fathers  were  forced  to  stop  and 
can  vindicate  more  clearly  than  ever  the  soundness  of 
their  noble  idealism. 

In  closing  it  may  be  said  that  the  initiative  and  ref- 
erendum appeal  particularly  to  progressive  Americans 
in  whom  still  lives  the  spirit  of  the  liberty-loving  men 
who  founded  this  nation.  Such  citizens  readily  com- 
prehend the  necessity  of  controlling  the  important  re- 
sults, and  of  not  limiting  themselves  to  toying  at  gov- 
ernment while  privilege  does  the  governing.  They 
take  great  satisfaction,  moreover,  in  a  remedial  meas- 
ure so  thoroughly  in  harmony  with  the  old  ideals  and 
institutions.    It  involves,  after  all,  only  a  bit  of  addl- 

162 


ALLY   OF   REPRESENTATIVE   GOVERNMENT 

tional  machinery,  and  depends  for  its  success  only 
upon  our  fitness  for  self-government. 

Of  course  direct  legislation  is  only  a  piece  of  mech- 
anism. It  will  not  sufiice  merely  to  set  it  up.  It  must 
be  made  to  work  promptly  and  with  vigor  when  re- 
c[uired.  This  will  take  real  citizens.  Oregon  shows 
that  such  citizens  still  exist — some  of  them  of  New 
England  or  other  American  stock,  some  of  them  born 
in  old-world  monarchies. 

The  success  in  Switzerland ;  the  steady  progress 
and  gratifying  results  in  America ;  the  strenuous  op- 
position by  favorites  or  managers  of  political  machines ; 
the  misrepresentations  by  professional  lobbyists  and 
conspicuous  officeholders,  echoed  in  ready-made  "  edi- 
torials," all  indicate  that  the  initiative  and  referendum 
are  measures  justly  destined  to  receive  an  increasing 
amount  of  public  attention  and  regard. 

With  the  initiative  and  referendum  in  force,  we 
shall  be  equipped  as  never  before  to  resist  enemies 
from  \\  ithin.  enemies  far  more  dangerous  to  our  free- 
dom than  any  foreign  foe. 

The  initiative  and  referendum  may  well  be  the 
means  of  instituting  on  a  permanent  basis  the  responsi- 
ble kind  of  representative  government  which  our  fa- 
tliers  li\ed  and  died  to  secure. 

The  initiative  and  referendum  may  well  prove  to 
he  the  salvation  of  the  momentous  experiment  led  by 
Jefferson,  Hancock,  Franklin,  the  Adamses  and  Wash- 
ington. 


CHAPTER  VII 

REPRESENTATIVE   AS   AGAINST    DIRECT   LEGISLATION  ^ 

It  is  not  always  that  there  is  a  direct  relation  be- 
tween the  sound  and  fury  of  language  and  its  real 
meaning,  but  such  imposing  words  as  the  initiative,  the 
referendum,  and  the  recall  do  not  indicate  innovations 
of  a  light  and  trifling  kind  in  the  character  of  our 
institutions.  As  the  doctrines  which  they  convey  are 
practiced  in  some  of  the  states  of  the  Union,  and  as 
they  are  proposed  for  adoption  in  other  states,  they 
involve  no  less  than  a  radical  change  in  our  method 
of  government.  In  effect,  they  propose  the  substitution 
of  direct  for  representative  government,  the  establish- 
ment of  the  direct  action  of  the  people,  not  merely 
in  selecting  their  agents,  but  in  framing  and  executing 
their  laws. 

To  most  of  us  the  proposals  are  full  of  novelty,  and 
it  is  not  too  much  to  say  that,  as  a  people,  we  have 
given  them  no  consideration  worthy  of  the  name. 
Have  we  explored  the  past  to  learn  whether  similar 
experiments  have  been  tried;  and,  if  tried,  what  has 

»  By  Congressman  Samuel  W.  McCall.     Reprinted   by  permis- 
sion from  the  Atlantic  Monthly,  October,  191 1. 

164 


REPRESENTATIVE  LEGISLATION 

been  the  effect?  Have  we  reflected  upon  the  obvious 
Hmitations.  upon  the  utterance  by  great  masses  of  men 
of  final  and  definite  regulations  for  the  conduct  of  a 
complex  society?  Have  we  considered  to  what  extent 
the  most  doubtful  results  under  our  present  structure 
of  government  are  due  to  the  overzeal  of  representa- 
tives to  respond  to  the  transient  and  noisy,  and  often 
misleading,  manifestations  of  popular  opinion,  and  to 
their  failure  to  act  bravely  as  the  instruments,  not  of 
the  people's  passions,  but  of  their  interests,  and  to  re- 
quire them  to  select  other  agents,  if  they  shall  insist 
upon  the  doing  of  wrong? 

At  the  threshold  of  the  discussion  we  encounter  the 
usual  epithets.  The  advocates  of  change  are  apt  to 
seek  popular  favor  by  decorating  themselves  and  their 
proposed  innovation  with  some  lofty  adjective,  and  in 
a  similar  fashion  to  cover  their  opponents  with  oblo- 
quy. The  quality  assumed  by  the  proponents  of  one  or 
all  of  this  trinity  of  reforms  they  express  in  the  word 
"  progressive."  They  are  advocating  "  progressive  " 
methods  of  government,  while  those  who  disagree  with 
them  stand  for  reactionary  methods.  "  Progressive  " 
is  an  alluring  word.  Everybody  believes  in  progress 
if  it  l)e  of  the  proper  kind,  and  a  due  amount  of  voci- 
feration on  the  part  of  those  claiming  a  monopoly  of 
the  virtue  may  serve  to  banish  skepticism  as  to  the 
kind.  But  if  the  ciuestion  were  to  be  settled  by 
epithets,  there  is  some  ground  at  least  for  asserting 
that  they  should  be  transposed  in  their  a|)plication. 
Representative  government  is  comparatively  modern ; 

i6s 


THE  INITIATIVE,   REFERENDUM    AND   RECALL 

direct  government  of  the  democratic  kind  is  ancient; 
and  the  latter  was  deHberately  discarded  for  the  former 
by  the  founders  of  our  government.  I  will  not  cite 
such  a  statesman  as  Madison,  not  because  the  heavy 
debt  which  the  cause  of  free  and  regulated  popular 
government  owes  him  can  ever  be  discharged,  but  be- 
cause in  the  passionate  rhetoric  of  the  self-styled  Pro- 
gressives, he  is  set  down  as  a  reactionary.  I  will 
choose  an  authority  who  still  remains  above  suspicion, 
and  will  take  the  author  of  the  Declaration  of  Inde- 
pendence, which  even  to-day  is  considered  radical  in 
its  democracy.  In  speaking  of  "  the  equal  rights  of 
man,"  Thomas  Jefferson  declared  that: 

"  Modern  times  have  the  signal  advantage,  too,  of 
having  discovered  the  only  device  by  which  these  rights 
can  be  secured,  to  wit, — government  by  the  people,  act- 
ing not  in  person,  but  by  representatives  chosen  by 
themselves." 

The  framers  of  the  constitution  were  entirely  fa- 
miliar with  the  failure  of  direct  democracy  in  the  gov- 
ernment of  numerous  populations,  and  they  were  in- 
fluenced by  their  knowledge  of  that  failure  in  devising 
our  own  structure  of  republican  government.  It  is 
now  proposed  to  abandon  the  discovery  of  modern 
times,  to  which  Jefferson  referred  and  which  he  de- 
clared to  be  the  only  method  by  which  rights  can  be 
secured,  and  to  put  in  its  stead  the  discarded  device  of 
the  ancients.  Who,  then,  are  the  reactionaries :  those 
who  are  opposed  to  the  substitution  of  direct  for  rep- 
resentative government  and  are  in  favor  of  the  pro- 

i66 


REPRESENTATIVE  LEGISLATION 

gressive  principles  of  the  American  constitution,  or 
the  supporters  of  direct  government  who  advocate  the 
return  to  the  reactionary  poHcies  which  thousands  of 
vears  ago  demonstrated  their  destructive  effect  upon 
the  government  of  any  considerable  populations?  It 
does  not  follow  that  to  be  a  reactionary  is  to  be  wrong. 
The  wise  reactionary  may  sometimes  preserve  the  gov- 
ernment of  a  state,  and  even  its  civilization.  Whether 
the  initiative,  referendum  and  recall  embody  sound 
political  principles  must  be  determined  by  other  tests. 
But  their  advocates  should  not  masquerade.  If  they 
choose  to  attach  to  themselves  any  label,  they  should 
frankly  spread  upon  their  banner  the  word  "  reaction- 
ary." 

The  framers  of  our  constitution  were  endeavoring 
to  establish  a  government  which  should  have  sway  over 
a  great  territory  and  a  population  already  large  and 
which  they  knew  would  rapidly  increase.  They  were 
about  to  consummate  the  most  democratic  movement 
that  had  ever  occurred  on  a  grand  scale  in  the  history 
of  the  world.  They  well  knew  from  the  experiments  of 
the  past  the  inevitable  limitations  upon  direct  demo- 
cratic government,  and,  being  statesmen  as  well  as 
democrats,  they  sought  to  make  their  government  en- 
during by  guarding  against  the  excesses  which  had 
so  often  brought  popular  governments  to  destruction. 
They  established  a  government  which  Lincoln  called 
"  of  the  people,  by  the  people,  for  the  people,"  and  in 
order  effectively  to  create  it  they  adopted  limitations 
which   would   make    its   continued   existence   i)ossible. 

167 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

They  knew  that,  if  the  governmental  energy  became 
too  much  diluted  and  dissolved,  the  evils  of  anarchy 
would  result,  and  that  there  would  follow  a  reaction 
to  the  other  extreme,  with  the  resulting  overthrow  of 
popular  rights.  They  saw  clearly  the  line  over  which 
they  might  not  pass  in  pretended  devotion  to  the  demo- 
cratic idea  without  establishing  government  of  the 
demagogue,  by  the  demagogue,  and  for  the  demagogue, 
with  the  recoil  in  favor  of  autocracy  sure  speedily  to 
follow ;  for  they  knew  that  the  men  of  the  race  from 
which  they  sprang  would  not  long  permit  themselves 
to  be  the  conscious  victims  of  misgovernment,  and  that 
they  would  prefer  even  autocracy  to  a  system  under 
which  the  great  ends  of  government  in  the  na- 
tion should  not  be  secured,  or  should  be  even  per- 
verted. 

We  are  in  danger  of  forgetting  the  essential  pur- 
pose of  government :  that  it  is  not  an  end  but  a  means, 
that  the  people  do  not  exist  for  the  government  but 
that  government  exists  for  the  people.  The  idolatry 
of  government,  or  of  its  institutions,  has  been  as  de- 
basing and  injurious  as  any  idolatry  that  has  ever  af- 
flicted mankind.  It  has  frequently  been  the  agent  of 
gross  and  wholesale  oppression ;  it  has  frequently  been 
the  means  by  which  the  many  have  been  kept  in  servi- 
tude and  subjection ;  and,  until  the  establishment  of 
our  own  system,  the  governments  have  been  few  which 
have  had  for  their  chief  purpose  to  safeguard  and  pro- 
tect the  individual,  and  to  hold  over  him  the  shield  of 
law,  so  that  he  might  be  secure  in  his  life,  his  liberty, 

i68 


REPRESENTATIVE  LEGISLATION 

the  fruits  of  his  labor,  and  in  his  right  as  an  equal 
member  of  the  state. 

And  when  I  speak  of  the  individual,  T  mean  the 
chief  thing-  that  is  essential  in  the  meaning  of  the  term 
"  the  people."  I  do  not  accept  the  latter  term  in  the 
sense  in  which  it  is  so  often  sweetly  used  by  those  who 
desire  our  votes.  I  am  unable  to  see  how  any  good, 
coming  to  a  mass  of  men,  can  be  felt  in  any  other 
way  than  by  the  individuals  in  the  mass.  And  until 
somebody  shall  point  out  a  higher  consciousness  than 
that  of  the  individual  man  or  woman  or  child,  he  can 
hardly  be  heard  to  deny  that  the  individual  man  or 
woman  or  child  is,  after  all,  the  ultimate  concern  of 
the  state. 

The  notion  that  there  is  a  collective  personality 
called  "  the  people,"  separated  from  the  individuals 
who  compose  it,  and  which  may  be  used  to  oppress 
each  one  and  all  of  its  component  parts  in  turn,  may 
well  have  been  a  conception  of  the  Greek  demagogues 
by  whom  it  was  so  fittingly  illustrated  in  practice.  I 
cannot  understand  how  there  can  be  any  freedom  that 
is  not  in  the  last  analysis  individual  freedom.  How- 
ever great  a  mass  of  men  you  may  have  in  a  nation, 
however  powerful  physically  it  may  be,  if  each  indi- 
vidual is  the  victim  of  o])pression,  if  he  is  denied  rights, 
if  there  is  no  forum  open  to  him,  where  he  can  be 
heard  to  say  against  the  majority,  "  This  is  mine," — 
then  "  llie  people  "  have  no  such  thing  as  liberty,  they 
have  no  such  thing  as  popular  rights.  As  to  the  "  com- 
posite citizen,"  he  obviously  is  nobody  who  ever  has 
13  169 


THE  INITIATIVE,    REFERENDUM   AND   RECALL   " 

existed  or  ever  will  exist.  When  the  advocates  of  a 
reform,  ignoring  the  man  of  flesh  and  blood  in  the 
street,  are  conducting  their  operations  with  reference 
to  this  mythical  person,  they  should  emigrate  to  Uto- 
pia. 

Is  it  for  the  interest  of  the  individual  members  of 
our  society  to  have  the  great  mass  of  us  pass  upon  the 
intricate  details  of  legislation,  to  execute  our  laws  and 
to  administer  justice  between  man  and  man?     That 
I  believe  to  be  in  substance  the  question  raised  by  the 
initiative,  the  referendum  and  the  recall,  as  they  are 
now  practically  applied  in  at  least  one  of  the  states  of 
the  Union,  the  example  of  which  is  held  up  as  a  model 
to  the  other  states.     With  an  infinitesimal  responsi- 
bility, with  only  one  vote  in  a  million,  how  seriously 
would  each  one  of  us  feel  called  upon  to  withdraw 
from  his  own  private  pursuits  and  to  explore  in  all 
their  details  the  complicated  questions  of  government? 
It  would  be  imposing  an  impossible  task,  scattered  as 
we  are  and  unable  to  take  common  counsel,  to  require 
us  in  the  mass  to  direct  the  work  of  government. 

First,  with  regard  to  the  initiative.  In  our  legis- 
lation the  work  of  investigation  and  of  perfecting  de- 
tails is  of  such  great  difficulty  that  proposed  laws  arc 
distributed  among  various  committees,  which  are 
charged  with  the  duty  of  considering  their  exact  terms. 
The  legislative  body  as  a  whole,  although  its  members 
are  paid  for  doing  the  work,  cannot  safely  assume  to 
pass  upon  the  intricate  questions  of  legislation  without 
investigation  by  committees  selected  with  reference  to 

170 


REPRESENTATIVE  LEGISLATION 

their  fitness  for  the  task.  The  proposed  law  as  per- 
fected by  a  committee  is  brought  before  the  representa- 
tive assembly  and  it  is  there  again  discussed  and  sub- 
jected to  criticism,  both  as  to  policy  and  form,  and 
in  this  open  discussion  defects  often  appear  which  re- 
quire amendment,  and  sometimes  the  defeat  of  the 
bill.  And  even  with  these  safeguards  laws  often  find 
their  way  upon  the  statute-books  which  are  not  best 
adapted  to  secure  the  purposes  even  of  their  authors. 
But  what  would  be  the  procedure  under  the  initia- 
tive? In  Oregon  a  law  may  be  initiated  upon  a  peti- 
tion of  eight  per  cent,  of  the  voters,  and  it  then  goes 
to  the  people  upon  the  question  of  its  final  enactment 
without  the  intervention  of  any  legislature.  Some 
man  has  a  beautiful  general  idea  for  the  advancement 
of  mankind,  but  beautiful  general  ideas  are  exceeding- 
ly difticult  to  put  into  statutory  form  so  that  they  may 
become  the  rule  of  conduct  for  a  multitude  of  men. 
Another  man  may  have  some  selfish  project,  which, 
like  most  selfish  projects,  may  be  concealed  under  spe- 
cious words.  The  beautiful  idea  or  the  selfish  scheme 
is  written  by  its  author  in  the  form  of  law.  and  he 
proceeds  to  get  the  requisite  number  of  signers  to  a 
petition.  With  a  due  amount  of  energy  and  the  pay- 
ment of  canvassers,  these  signatures  can  be  secured  by 
the  carload,  and  the  jiroposed  law  then  goes  to  the 
people  for  enactment,  and  the  great  mass  of  us.  on 
the  farm,  on  the  hillside,  and  in  the  city,  proceed  to 
take  the  last  step  in  making  a  law  which  nine  out  of 
ten  of  us  have  never  read.     And  this  is  called  securing 

171 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

popular  rights  and  giving  the  people  a  larger  share  in 
their  government! 

The  people,  at  the  election  in  Oregon  held  in  19  lo, 
passed  upon  proposed  laws  which  filled  a  volume  of 
two  hundred  pages,  and  they  passed  upon  them  all  in 
a  single  day,  each  voter  recording  his  verdict  at  the 
polling  booth  upon  both  the  candidates  and  the  pro- 
posed laws.  In  the  ordinary  legislative  body,  made  up 
of  no  dififerent  material  from  that  of  which  the  peo- 
ple are  composed,  an  important  question  may  be  con- 
sidered for  a  day,  or  even  for  a  week ;  and  then,  wath 
the  arguments  fresh  in  their  minds,  the  legislators 
record  their  votes  upon  the  single  measure.  What  a 
delightful  jumble  we  should  have  if  forty  different 
statutes  were  voted  upon  in  the  space  of  a  half-hour 
by  the  members  of  a  humdrum  legislature ! 

Of  course,  one  must  be  cautious  about  expressing 
a  doubt  that  the  people  in  their  collective  capacity  can 
accomplish  impossibilities.  You  may  say  of  an  individ- 
ual that  he  should  have  some  special  preparation  be- 
fore he  attempts  to  set  a  broken  arm  or  perform  a 
delicate  operation  upon  the  eye.  But  if  you  say  that 
of  all  of  us  in  a  lump,  some  popular  tribune  will  de- 
nounce you.  And  yet  there  is  ground  for  the  heretical 
suspicion,  admitting  that  each  one  of  the  people  may 
have  in  him  the  making  of  a  great  legislator,  that 
there  should  be  one  simple  prerecjuisite  which  he  should 
observe  in  order  to  be  any  sort  of  a  legislator  at  all. 
He  should  first  read  or  attempt  to  understand  the  pro- 
visions of  a  bill  before  solemnly  enacting  it  into  law. 

172 


REPRESENTATI\E   LEGISLATION 

One  can  scarcely  be  accused  of  begging-  the  cjuestion 
to  say  that  the  voters  would  not  read  a  whole  \-olume 
of  laws  before  voting  upon  them.  The  slightest 
knowledge  of  human  nature  would  warrant  that  asser- 
tion. 

Hew  many  e\en  of  the  most  intelligent  of  our  peo- 
ple, of  college  professors,  of  ministers,  read  the  stat- 
utes that  have  already  been  passed  and  that  are  to 
govern  their  conduct  ?  Even  lawyers  are  not  apt  to 
read  them  generally,  but  in  connection  with  particu- 
lar cases.  But  if  some  proof  were  necessary,  one  has 
only  to  cite  some  of  the  Oregon  laws.  For  example, 
there  are  two  methods  of  pursuing  the  salmon  fisher- 
ies in  the  Columbia  River :  in  the  lower  and  sluggish 
waters  of  the  stream,  fishing  is  done  by  the  net ;  and 
in  the  upper  waters  by  the  wdieel.  The  net  fishermen 
desired  to  prohibit  fishing  by  the  wdieel,  and  they  pro- 
cured sufticient  signatures  and  initiated  a  law  having 
that  object  in  ^•icw.  On  the  other  hand,  the  wheel 
fishermen  at  the  same  time  wished  to  restrict  fishing 
by  the  net,  and  they  initiated  a  law  for  that  purpose. 
Both  laws  went  before  the  peo])le  at  the  same  election 
and  they  generously  passed  them  both,  and  thus,  so 
far  as  the  action  of  the  people  was  concerned,  the 
great  salmon  fisheries  of  the  Columbia  were  practically 
stopped. 

A  law  was  "  initiated  "  by  signatures  and  was  en- 
acted by  the  people  at  the  election  in  November.  i()io. 
providing  f<jr  the  election  of  delegates  to  the  national 
political  conventions  by  popular  vote.     The  law  for- 

17?, 


THE  INITIATIVE,    REFERENDUM   AND   RECALL 

bade  each  voter  to  vote  for  more  than  one  candidate. 
But  upon  the  usual  basis  of  apportionment  Oregon  is 
entitled  to  ten  delegates  in  a  national  convention.  If 
some  candidate  should  be  preeminently  fitted  above 
all  others  for  the  place  and  should  receive  all  the  votes, 
the  state  would  have  only  a  single  delegate  in  the  con- 
vention. If  the  voter  has  the  right  to  vote  for  all  the 
candidates  for  the  whole  representation  of  his  state  in 
the  electoral  college,  what  semblance  of  a  reason  can 
there  be  why  he  should  not  have  the  same  participation 
in  the  preliminary  election,  when  the  candidate,  who 
may  finally  be  elected  president,  is  to  be  chosen  ?  The 
same  law  forbids  a  voter  from  voting  for  the  nomina- 
tion of  more  than  one  candidate  for  presidential  elec- 
tor. Thus  a  minority  of  a  party  in  the  state  may  nomi- 
nate candidates  for  electors  hostile  to  its  presidential 
candidate.  If  the  vote  of  the  presidential  electors  of 
Oregon  shall  not  some  time  be  divided,  even  though 
the  popular  vote  may  have  been  strongly  in  favor  of  a 
given  candidate,  it  will  not  be  the  fault  of  this  law. 

It  seems  rather  superfluous  to  cite  instances  to 
prove  that,  where  the  final  legislative  body  is  denied 
the  power  of  meeting  and  discussing  the  provisions  of 
a  proposed  law,  there  will  be  loose  and  freakish  legis- 
lation of  the  worst  kind.  Mr.  Woodrow  Wilson,  be- 
fore he  essayed  the  exacting  role  of  the  practical  poli- 
tician, declared  before  the  students  of  Columbia  Uni- 
versity that  a  government  cannot  act  inorganically  by 
masses,  it  must  have  a  law-making  body.  It  can  no 
more  make  laws  through  its  voters  than  it  can  make 

174 


REPRESENTATIVE  LEGISLATION 

laws  through  its  newspapers.  And  in  the  same  course 
of  lectures  he  declared  that : 

"  We  sometimes  allow  ourselves  to  assume  that 
the  '  initiative  '  and  the  '  referendum,'  now  so  much 
talked  of  and  so  imperfectly  understood,  are  a  more 
thorough  means  of  getting  at  public  opinion  than  the 
process  of  our  legislative  assemblies.  Many  a  radi- 
cal programme  may  get  what  will  seem  to  be  almost 
general  approval  if  you  listen  only  to  those  who  know 
they  will  not  have  to  handle  the  perilous  matter  of 
action,  and  to  those  who  have  merely  formed  an 
independent,  that  is,  an  isolated  opinion,  and  have  not 
entered  into  common  counsel ;  but  you  will  seldom 
find  a  deliberative  assembly  acting  half  so  radically  as 
its  se\eral  members  have  professed  themselves  ready 
to  act  before  they  came  together  into  one  place  and 
talked  the  matter  over  and  contrived  statutes." 

After  Mr.  Wilson  entered  upon  his  political  career, 
he  changed  his  mind,  but  his  recantation  in  no  degree 
afTects  the  weight  of  the  argument  to  which  I  have 
referred.  The  "  common  counsel,"  of  which  he  speaks 
is  an  indispensable  process  in  the  making  of  laws,  and 
whenever  our  legislative  bodies  imi)ose  serious  limita- 
tions upon  the  process,  it  is  usually  to  tlie  detriment 
of  the  character  of  the  laws  passed ;  and  the  more 
grave  and  statesmanlike  the  deliberations  of  those 
charged  with  the  responsibility,  the  better  it  will  be  for 
the  state.  For  this  vital  process  there  would  be  substi- 
tuted the  enthusiasm  of  somebody  who  believes  he 
has  devised  some  statutory  cure-all   for  the   ills  that 

17.S 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

afflict  the  body  politic,  and  embodies  his  enthusiasm  in 
a  bill.  He  seconds  himself,  as  any  one  may,  with  the 
necessary  signatures  to  a  petition ;  and  then  without 
coming  together  and  taking  common  counsel,  and  often 
without  reading  what  has  been  written,  the  great  mass 
of  us  solemnly  proceed  to  vote.  Such  a  procedure 
would  put  a  test  upon  the  people  under  which  no  nation 
could  long  endure. 

The  referendum  is  somewhat  better  than  the  initia- 
tive, but  as  a  settled  policy  in  the  making  of  ordinary 
statutes  it  is  indefensible.  It  can  be  used  upon  con- 
crete propositions  that  are  not  complex  in  character, 
and  especially  upon  constitutional  propositions  which 
ordinarily  enunciate  general  principles.  In  the  case 
of  constitutional  changes,  however,  they  should  never 
take  effect  without  the  support  of  a  clear  majority  of 
the  voters,  and  in  advance  of  their  action  they  should 
have  the  support  of  a  large  majority  of  the  legislative 
body,  such  as  is  provided  in  Massachusetts,  so  that  our 
constitutions  should  have  more  stability  than  mere 
statutes,  and  should  not  be  subject  to  change  with  every 
passing  breeze. 

I  may  illustrate  again  from  the  example  of  Ore- 
gon— which  is  pointed  out  by  the  friends  of  these 
reforms  as  a  model,  and  whose  people  are  heroically 
subjecting  themselves  to  political  vivisection  in  the 
testing  of  governmental  experiments.  An  amendment 
may  be  made  to  the  constitution  of  that  state  by  a 
majority  of  those  who  vote  upon  the  proposition  in 
question.     An  amendment  was  passed  in  one  election, 

176 


REPRESENTATIVE  LEGISLATION 

by  barely  one-third  of  the  legal  voters,  which  pro- 
vided that  in  civil  cases  three-fourths  of  a  jnrv  mieht 
render  a  verdict,  tliat  no  new  trial  should  be  had  where 
there  was  any  evidence  at  all  to  sustain  the  verdict, 
and  making-  other  important  changes  in  the  method 
of  administering  justice.  Constitutional  changes  should 
not  be  made,  except  in  deference  to  a  pronounced  and 
settled  public  opinion,  which  cannot  better  be  deter- 
mined, under  our  system  than  to  require  the  action  of 
successive  legislatures  and  afterwards  a  direct  vote  of 
the  people. 

The  referendum  may  sometimes  profitably  be  used 
in  connection  with  questions  affecting  municipalities 
where  each  voter  has  an  appreciable  interest  in  the 
solution  of  the  question  and  is  familiar  with  the  condi- 
tions upon  wliich  the  solution  depends;  but  as  a  step  in 
the  process  of  passing  statutes  of  the  usual  character, 
statutes  which  create  crimes  and  provide  penalties  for 
their  violation,  or  which  have  complicated  regulations 
of  a  business  character,  the  use  of  the  referendum 
would  be  vicious.  We  are  not  in  tlic  mass  adapted 
to  pass  upon  questions  of  detail,  just  as  the  thousands 
of  stockholders  of  a  great  corporation  arc  not  in  a 
position  directly  to  manage  its  business  affairs.  The 
function  that  we  can  best  exercise  is  that  of  selecting 
agents  for  that  purpose  and  of  holding  them  responsi- 
ble for  results.  Upon  the  questions  relating  to  the 
character  of  representatives,  who  are  usually  known 
personally  to  the  people,  they  have  excellent  means  for 
forming  a   jurlgmcnt.      But  if  they  so  often  make  a 

177 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

mistake  in  their  judgments  of  the  men  they  select,  as 
we  must  infer  from  the  arguments  put  forward  in 
favor  of  direct  legislation,  how  much  more  would  they 
be  apt  to  make  mistakes  in  dealing  with  the  compli- 
cated questions  involved  in  practical  legislation  ? 

The  referendum  takes  away  from  the  legislature 
the  responsibility  for  the  final  passage  of  laws  and 
permits  it  to  shift  the  burden  upon  the  people.  Leg- 
islators will  be  asked :  "  Are  you  not  willing  to  trust 
the  people  to  say  in  their  wisdom  whether  a  given  bill 
should  be  enacted?  "  The  prevailing  vice  of  members 
of  law-making  bodies  in  our  country  is  not  venality,  it 
is  political  cowardice ;  and  they  will  be  ready  to  take 
refuge  in  that  invitation  to  trust  the  people.  A  witty 
member  of  Congress  from  Mississippi  once  said  that 
he  usually  found  it  easier  to  do  wrong  than  to  explain 
why  he  did  right.  There  will  be  no  such  difficulty 
under  the  referendum.  The  legislator  may  dodge  the 
responsibility  of  voting  upon  some  bad  but  specious 
law  where  his  political  interests  would  lead  him  to 
vote  one  way  and  his  sense  of  duty  another  way.  He 
would  only  need  to  say  that  he  believed  in  the  people, 
and  would  vote  to  refer  it  to  that  supreme  court  of  ap- 
peal. Even  under  the  present  system  a  legislator  is 
quite  too  much  influenced  by  the  noisy  demonstrations 
that  may  be  made  in  favor  of  one  side  or  the  other  of 
a  pending  proposition,  and  some  of  the  worst  laws  that 
find  their  way  upon  the  statute-books  get  there,  not 
because  they  are  approved  by  the  judgment  of  the  leg- 
islator, but  in  response  to  what  he  thinks  may  be  the 

178 


REPRESENTATIVE   LEGISLATION 

wishes  of  the  people.  And  instead  of  voting  for  what 
he  honestly  believes  to  be  just  and  for  the  public  inter- 
ests, even  against  what  may  appear  at  the  moment  to 
be  popular  sentiment,  and  then  bravely  going  before 
his  constituents  and  attempting  to  educate  them  upon 
the  cjuestion,  he  quite  too  often  tacks  and  goes  before 
the  wind. 

While  the  prevailing  fault  of  legislative  bodies  is, 
as  I  have  said,  political  cowardice,  the  fault  of  the 
voter  is  political  indifference.  There  are  far  too  few 
of  us  who  carefully  study  public  questions  and  try  to 
secure  exact  information  about  them.  We  are  attracted 
by  sensational  charges,  by  lurid  headlines  in  the  news- 
papers, and  by  generalities.  We  too  often  compla- 
cently accept  the  estimate  that  is  placed  upon  our  pro- 
found and  exact  political  knowledge  by  the  men  who 
are  asking  us  to  vote  for  them,  and  we  are  far  from 
giving  that  serious  attention  to  the  political  issues 
which  we  bestow  upon  our  own  i)ri\'ate  affairs. 

There  is  a  lawyer  of  very  high  standing  at  the 
bar  of  his  state  who  was  astonished  to  be  told  that  the 
House  of  Representatives  had  an  established  order  of 
business  which  consumed  the  greater  part  of  its  time. 
He  imagined  that  the  Speaker  had  practically  un- 
limited discretion  in  recognition.  Another  intelligent 
man  who  was  president  of  a  great  railroad  could  not 
give  the  name  of  his  member  of  Congress,  although 
he  had  probably  voted  for  him  for  ten  years,  if  he 
had  voted  at  all.  Such  instances  are  by  no  means  rare, 
and  intelligent  people  of  that  sort  who  neglect  their 

179 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

public  duties  often  become  the  easy  victims  of  every 
ism  and  ditin. 

We  are  so  engrossed  in  our  private  business  that 
many  of  us  give  no  attention  to  pubHc  questions,  or  we 
too  frequently  bestow  upon  the  latter  such  superficial 
study  that  our  action  becomes  the  dangerous  thing 
that  is  based  upon  little  knowledge.  This  condition  of 
indifference,  even  under  our  present  system,  produces 
nothing  but  an  evil  effect  upon  the  character  of  laws; 
and  this  evil  effect  would  be  greatly  intensified  under 
the  initiative  and  referendum.  Legislation  may  be  ex- 
pected to  represent  in  the  long  run  the  fair  average 
of  the  information  and  the  study  of  the  body  which 
enacts  it,  whether  that  body  be  composed  of  four  hun- 
dred legislators  or  one  hundred  millions  of  people. 

A  reform  that  is  most  needed  is  one  that  will  make 
difficult  the  passage  of  laws,  unless  they  repeal  exist- 
ing statutes.  The  mania  of  the  time  is  too  much  legis- 
lation and  the  tendency  to  regulate  everybody  and 
everything  by  artificial  enactments.  The  referendum 
would  not  be  likely  to  furnish  the  cure  for  this  evil, 
but  would  tend  to  increase  the  number  of  questionable 
statutes  that  would  be  referred  to  the  people ;  and  some 
of  them  would  doubtless  be  enacted.  If  those  who  are 
chosen  and  paid  to  do  the  work,  and  upon  whom  the 
responsibility  is  placed,  are  sometimes  found  to  enact 
vicious  laws,  what  would  be  the  result  if  legislation 
were  enacted  by  all  of  us  when  we  had  made  no  special 
investigation  of  details,  when  we  should  be  quite  too 
prone  to  accept  the  declamatory  recommendations  of 

!80 


REPRESENTATIVE  LEGISLATION 

the  advocates  of  legislative  schemes  and  suhmissively 
swallow  the  quack  nostrums  that  might  be  offered  for 
the  diseases  afflicting  the  body  politic? 

The  most  dangerous  statutes  are  those  which  deal 
with  admitted  evils,  and.  in  order  to  repress  them,  are 
so  broadly  drawn  as  to  include  great  numbers  of  cases 
which  should  not  fairly  come  within  their  sco[)c  cir 
to  create  a  borderland  of  doubt  where  the  great  mass 
of  us  may  not  clearly  know  how  to  regulate  our  con- 
duct in  order  that  we  may  comply  with  their  prohibi- 
tions. Just  such  statutes,  with  a  basis  of  justice  but 
w^ith  imperfectly  constructed  details,  would  be  most 
likely  to  prevail  upon  a  popular  vote.  If  the  forty-six 
states  of  the  Union,  and  the  national  government 
which  is  the  aggregate  of  them  all,  should  have  this 
system  of  direct  legislation,  our  statute-books  w^ould 
very  probably  soon  become  a  medley  of  ill-considered 
reforms,  of  aspirations  sought  to  be  expressed  in  the 
cold  prose  of  statutes,  of  emotional  enactments  per- 
petuating some  passing  popular  whim  and  making  it 
a  rule  of  conduct  for  the  future ;  and  the  strict  enforce- 
ment of  our  laws  would  mean  the  destruction  of  our 
civilization. 

And  then,  in  order  to  perfect  this  scheme  of  popu- 
lar government  and  to  safeguard  the  rights  of  a  help- 
less people,  in  addition  to  all  this,  they  offer  us  the 
recall.  Not  merely  are  the  laws  to  be  directly  enacted 
by  the  people,  but  the  execution  of  the  laws  is  to  be 
conducted  in  the  same  way.  There  would  be  tem- 
porary agents  for  the  purpose  of  governing,  but  the 

i8i 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

people  would  have  ropes  about  their  necks  and  at  any 
moment  they  would  be  subject  to  political  extinction. 
This  power  involves  the  supposition  that  the  people  are 
omniscent  and  ever-watchful. 

The  constitution  of  Arizona  seems  to  be  in  line 
with  the  most  advanced  thought  upon  this  subject. 
That  constitution  provides  that  twenty-five  per  cent,  of 
the  voters  may  institute  a  proceeding  for  the  recall ; 
and  when  it  is  invoked  the  man  whom  they  have 
elected  to  an  ofiice  is  permitted  either  to  resign  in  five 
days  or  to  defend  himself  in  two  hundred  words, 
upon  a  proceeding  to  throw  him  out  in  disgrace. 

In  Oregon,  it  very  rarely  happens  that  there  is  an 
election  in  which  the  defeated  candidate  does  not 
receive  twenty-five  per  cent,  of  the  vote,  and  not  infre- 
quently he  receives  nearly  one-half  of  it.  It  would  be 
a  matter  of  no  difficulty  for  him  to  initiate  a  recall  and 
practically  to  have  the  election  over  again ;  and  so  we 
should  have  perpetual  warfare  over  the  holding  of 
office.  That  result  has  already  clearly  developed 
where  the  recall  is  in  force. 

A  public  officer  could  not  take  the  long  view ;  he 
could  not  patiently  study  the  problems  that  confronted 
him  and  carefully  look  into  the  conditions  with  which 
his  office  had  placed  him  in  close  contact,  but  of  which 
as  a  private  citizen  he  could  have  only  the  most  gen- 
eral knowledge.  But  he  would  need  to  be  careful  to 
do  only  those  things  which  might  be  justified,  not  by 
close  inspection,  but  upon  the  most  superficial  view. 
The  office  to  which  he  has  been  elected  gives  him  an 

182 


REPRESENTATIVE   LEGISLATION 

elevated  point  of  view  which  he  did  not  have  before, 
but  he  cannot  avail  himself  of  his  wider  range  becausc- 
if  he  is  no  sooner  in  office  than  he  must  justify  him- 
self or  retire  in  disgrace,  he  will  be  likely  to  do  the 
thing  most  pleasing  to  the  prevailing  fancy  and  whicli 
will  adapt  itself  most  easily  to  the  momentary  condi- 
tion of  the  public  mind.  His  political  interests  will 
lead  him  to  do  the  plausil)Ie  and  easily  advertised 
thing,  and  it  may  be  the  thing  that  will  really  injure 
the  people. 

Whether  such  a  government  may  be  called  popular 
or  not,  we  should  be  likely  always  to  have  under  it 
government  of  the  politician  rather  than  government 
of  the  statesman.  I  have  been  criticised  for  using  an 
expression  similar  to  this,  as  if  I  had  implied  the  con- 
verse :  that  we  now  always  have  government  by  the 
statesman ;  but  such  an  inference  can  be  drawn  only  by 
a  careless  or  an  unscrupulous  thinker.  That  we  some- 
times have  government  by  the  statesman  is  undeniable; 
Init  that  our  government  is  perfect,  nobody  would  pre- 
tend. Edmund  Burke  asserted  in  effect  the  same  thing 
at  a  time  in  his  career  when  he  was  the  most  liberal, 
as  he  was  always  the  most  philosophical,  of  British 
statesmen.  In  appealing  to  his  constituents  for  the 
right  of  a  representative  "  to  act  upon  a  very  enlarged 
view  of  things,"  and  not  to  look  merely  to  "  the  Hash 
(^1  the  day,"  he  declared:  "When  the  popular  mem- 
ber is  narrowed  in  his  ideas,  and  rendered  timid  in  his 
proceedings,  the  service  of  the  Crown  will  be  the  sole 
nursery  of  statesmen."     According  to  Burke's  view, 

183 


THE   INITIATIVE,   REFERENDUM    AND   RECALL 

the  constant  response  to  the  popular  mood  would  at 
least  banish  statesmen  from  the  service  of  the  people, 
if  it  did  not  limit  it  to  the  politicians. 

It  is  not  difficult  to  turn  back  to  the  supreme  crises 
in  American  history,  when  its  greatest  figures  were 
heroically  struggling  for  what  they  saw  to  be  for  the 
interests  of  their  country,  and,  if  the  policy  of  the 
recall  had  been  in  force,  to  see  how  the  whole  course 
of  history  might  have  been  changed,  and  how  ambi- 
tion and  envy  might  have  utilized  a  temporary  unpop- 
ularity to  terminate  some  splendid  career. 

As  an  illustration,  take  Lincoln  in  the  earlier  days 
of  his  administration.  The  disastrous  defeats  that  the 
Union  arms  had  suffered  had  been  relieved  only  by 
slight  successes.  Lincoln  scarcely  had  a  friend  even 
in  his  own  cabinet.  Seward  was  willing  to  take  him 
under  guardianship  and  run  the  country  for  him; 
Stanton  had  written  of  the  "  imbecility  "  of  the  ad- 
ministration ;  Chase  was  quite  ready  to  be  a  candidate 
for  the  presidency  himself;  the  abolitionists  were  un- 
sparing in  their  criticism;  the  great  organs  of  public 
opinion  were  hostile  to  him;  and  there  can  be  little 
doubt  that,  if  a  proceeding  for  recall  could  have  been 
had  against  him  at  the  moment  when  he  was  envel- 
oped in  the  clouds  of  unpopularity,  the  career  of  the 
greatest  of  Americans  would  have  been  brought  to  a 
disgraceful  ending,  with  results  to  civilization  which 
it  is  melancholy  to  contemplate. 

And  then  we  are  to  have  the  recall  of  judges. 
The  enforcement  of  laws  by  judges  subject  to  popular 

184 


fe 


REPRESENTATIVE  LEGISLATION 

recall  would  be  likely  to  be  quite  in  keeping  with  the 
character  of  the  laws,  if  they  had  been  enacted  under 
the  initiative  and  referendum.  If  we  are  to  have  all 
the  other  things,  the  initiative,  the  referendum,  and 
the  recall  of  political  officers,  there  would  be  this 
reason  for  having  the  judicial  recall.  It  would  com- 
plete and  make  exquisite  the  harmony  of  this 
destructive  system.  The  two  fundamental  things  in 
the  development  of  English  liberty  were  the  free  par- 
liament chosen  by  the  people  and  independent  of  the 
crown,  and  the  independence  of  the  judiciary,  which 
had  held  its  tenure  only  at  the  royal  pleasure.  The 
first  great  step  for  the  independence  of  Parliament 
was  won  at  Runnymede,  and  the  most  signal  result 
of  the  Revolution  of  1688  was  the  establishment  of 
the  independence  of  the  judiciary. 

Every  schoolboy  knows  the  story  of  the  bloody 
assizes,  the  black  judicial  murders,  the  gross  travesties 
of  justice  which  were  seen  under  the  old  system,  when 
the  judges  held  their  office  subject  to  the  favor  of  the 
crown.  It  was  only  after  the  revolution  that  English 
courts  became  the  real  theatres  of  justice,  and  the 
weight  of  the  law  and  the  evidence,  and  not  the  fear 
of  a  master,  determined  the  decree.  But  tlie  recall  of 
judges  would  make  them  on  the  instant  subject  to 
another  master.  I^he  jtidge.  in  order  to  feel  secure  in 
his  office,  would  have  to  consult  the  popular  omens 
rather  than  the  sources  of  the  law.  Instead  of  looking 
to  tlic  drift  of  llie  autliorilies,  he  would  be  likely  to 
study  tile  direction  of  the  popular  winds.  If  in  some 
13  185 


THE   INITIATIVE,   REFERENDUM    AND   RECALL 

judicial  district  a  strong  labor  union  or  a  great  cor- 
poration should  hold  the  balance  of  political  power,  the 
courts  in  that  district  would  be  likely  to  become  mere 
instruments  of  oppression. 

But  if  we,  the  people,  are  so  perfect  that  we  can 
do  no  wrong,  even  though  we  are  guilty  of  no  investi- 
gation, and  can  with  wisdom  assume  directly  to  enact 
and  enforce  our  laws,  what  reason  is  there  why  there 
should  be  any  constitutional  restraint  upon  our  action, 
and  why  should  we  be  hampered  with  statutes  or  con- 
stitutions even  of  our  own  making?  Why  not  have 
the  present  entirely  free  from  restraints  imposed  by 
the  past?  Why  not  permit  us  in  our  omnipotent  wis- 
dom to  decide  each  case  upon  its  own  merits,  consid- 
ering only  the  inherent  principles  of  abstract  justice, 
which  in  our  collective  capacity,  according  to  our  flat- 
terers, we  must  of  course  thoroughly  understand? 

The  democracy  of  Athens  at  last  attained  to  this 
altitude,  where  the  sublimated  "  composite  citizen " 
stood  forth  unfettered  and  showed  what  he  could 
really  do.  In  the  latter  days  of  that  city  the  action  of 
her  people  became  so  direct  that  in  a  single  abhorrent 
decree,  disregarding  what  was  left  of  their  constitu- 
tion, they  ordered  six  of  their  generals,  among  them 
the  son  of  Pericles,  to  be  executed,  because,  although 
victorious  over  their  enemies  in  the  days  when  Athe- 
nian victories  were  few,  the  success  had  not  been 
achieved  without  cost. 

Those  who  advocate  the  direct  action  of  our  great 
democracy  might  study  with  a  good  deal  of  profit  the 

i86 


REPRESENTATIVE  LEGISLATION 

history  of  the  Httle  state  to  which  I  have  just  been 
referring.  No  more  brilHant  people  ever  existed  than 
the  Athenian  people.  They  had  a  genius  for  govern- 
ment. The  common  man  was  able  to  "  think  im- 
perially." Their  great  philosopher,  Aristotle,  could 
well  speak  of  the  Athenian  as  a  political  animal.  They 
achieved  a  development  in  literature  and  art  which 
probably  has  never  since  been  reached.  They  could 
boast  of  orators  and  philosophers  to  which  those  of 
no  other  nation  can  be  compared.  We  marvel  when 
we  consider  the  surviving  proofs  of  their  civilization. 
But  when  they  did  away  with  all  restraints  upon  their 
direct  action  in  the  making  and  enforcement  of  laws, 
in  administering  justice  and  in  regulating  foreign 
affairs,  their  greatness  was  soon  brought  to  an  end, 
and  they  became  the  victims  of  the  most  odious 
tyranny  to  which  any  people  can  be  subjected,  the 
tyranny  that  results  from  their  own  unrestrained  and 
unbridled  action. 

It  is  said  that  the  history  of  those  distant  times 
can  present  no  useful  precedent  for  our  own  guidance ; 
but  in  what  respect  is  human  nature  different  to-day? 
Whatever  new  stars  our  telescopes  may  have  discov- 
ered, whatever  new  inventions  may  have  been  brought 
to  light,  and  whatever  advances  may  have  been  made 
in  scientific  knowledge,  the  mainsprings  of  human 
action  are  substantially  the  same  to-day  that  they  were 
in  the  time  of  the  Greeks.  We  should  be  rash,  indeed, 
to  assume  that  we  shall  succeed  where  they  failed,  and 
that  we  can  disregard  their  experience  with  impunity. 

187 


THE   INITIATIVE,   REFERENDUM    AND   RECALL 

But  we  are  told  that  the  crime  of  our  age  is  the 
inordinate  love  of  wealth,  and  that  to  protect  ourselves 
from  its  evils  we  must  set  aside  our  existing  institu- 
tions. But  is  the  love  of  wealth  any  new  thing?  The 
greatest  of  ancient  statesmen  were  accused  of  the 
grossest  forms  of  bribery.  Thousands  of  years  ago 
the  love  of  money  was  declared  to  be  the  root  of  all 
evil.  It  is  not  the  fault  of  an  age  to  be  satisfied  with 
itself.  Poets  have  always  been  singing  of  a  golden 
age,  and  they  have  placed  it  sometimes  in  the  past, 
sometimes  in  the  future,  but  never  in  the  present.  We 
may  go  back  almost  to  the  oldest  of  poets,  Hesiod,  and 
we  shall  find  him  placing  the  golden  age  far  back  of 
his  own  day,  while  his  own  time  he  pictured  as  one 
stained  with  plundering,  with  envy,  brawling,  and 
perjury.  Horace  in  a  lively  ode  sought  a  poet's  escape, 
and  called  upon  the  Roman  citizens  to  abandon  their 
wicked  country  and  set  sail  for  the  mythical  islands 
which  Jupiter  had  set  aside  when  he  stained  the  golden 
age  with  brass  and  hardened  the  brazen  ages  into  iron. 
And  those  islands  were  no  more  mythical  than  the 
refuge  from  our  own  crimes  which  the  inventors  of 
the  initiative,  the  referendum  and  the  recall  have 
pointed  out  to  us. 

In  what  respect  should  we  have  been  better  if,  dur- 
ing the  amazing  physical  development  of  the  last  two 
generations,  we  had  had  direct  democratic  govern- 
ment ?  It  cannot  be  contended  that  our  legislators  did 
not  represent  the  people.  If  they  had  attempted  by 
their  votes  to  repress  the  universal  sentiment  for  indus- 

i88 


REPRESENTATIVE  LEGISLATION 

trial  expansion,  they  could  not  have  remained  in  office. 
The  people  of  the  towns,  even  of  New  England,  were 
found  voting  bonds  as  bonuses  for  the  building  of  rail- 
roads and  exemptions  from  taxation  in  order  to  secure 
manufacturing  plants.  And  in  the  growing  West  the 
sentiment  for  empire  and  expansion  was  so  strong  that 
cities  and  towns  were  bidding  against  each  other  in 
the  offer  of  gratuities,  and  if  it  had  not  been  for  the 
occasional  conservatism  of  legislatures  and  for  the 
issuing  of  injunctions  by  judges,  who  under  the  recall 
would  quite  likely  have  been  thrown  out  of  office, 
our  western  countrv  would  have  been  covered  with 
communities  which  had  made  themselves  bankrupt  by 
the  gratuitous  issue  of  bonds  in  aid  of  factories  and 
railroads ;  and  we  should  probably  not  have  attained 
anything  approaching  our  present  development  be- 
cause of  the  check  that  would  inevitably  have  come 
through  the  gross  corruption  of  the  system. 

The  advocates  of  direct  government  cite  the  exam- 
ples of  Oregon  and  Switzerland,  where  they  point  to 
results  with  an  eloquence  nowhere  else  to  be  found 
outside  of  a  mining  prospectus.  Perhaps  I  have  al- 
ready referred  sufficiently  to  Oregon.  One  must  be 
easily  satisfied  who  can  be  convinced  by  a  careful 
scrutiny  of  results  in  that  state,  even  though  the  ex- 
periment has  been  tried  among  her  intelligent  people. 
Switzerland  is  a  small  country,  scarcely  equal  in  area 
to  some  of  our  American  counties,  and  a  large  propor- 
tion even  of  that  small  area  is  covered  by  uninhabit- 
able mountains.     The  population  is  thrifty  and  con- 

189 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

servative  and  largely  devoted  to  the  work  of  caring 
for  the  vast  numbers  of  tourists  who  annually  visit 
the  country.  The  conditions  as  to  complexity  of  indus- 
try are  radically  different  from  those  existing  in 
America.  But  while  Switzerland  is  one  of  the  coun- 
tries best  adapted,  as  we  certainly  are  one  of  the  least 
adapted,  to  the  operation  of  the  initiative  and  the  ref- 
erendum,-the  results  there  are  not  such  as  to  justify 
their  adoption  in  any  other  country,  if  we  may  ci-edit 
the  report  made  to  the  State  Department  by  our  vice 
consul  at  Berne,  and  presented  to  the  Senate  by  Mr. 
LaFollette  on  July  13,  1909.     The  report  says: 

"  The  great  questions  of  centralization,  civil  status, 
laws  of  marriage  and  divorce,  bankruptcy  laws,  the 
customs  tariffs,  the  railroad  purchase,  employers'  lia- 
bility, factory  laws,  unity  of  the  conflicting  cantonal 
civil  and  criminal  laws  into  a  federal  code,  the  mili- 
tary organization,  the  pure-food  law,  etc.,  all  of 
which  are  things  of  the  past,  were  congressional 
measures.  It  may  safely  be  said  that  the  initiative 
can  be  of  decided  and  positive  value  only  in  dis- 
tricts small  enough  to  enable  the  average  citizen  to 
form  a  conscientious  opinion  upon  projects  of  such 
local  significance  as  to  be  well  within  his  practical 
knowledge,  but,  in  addition,  he  must  exercise  his  duty 
as  he  sees  it  at  the  polls.  With  a  comparatively  small 
number  of  signatures  requisite  for  an  initiative  meas- 
ure, its  danger  lies  in  the  fact  that  it  may  easily  be 
prostituted  by  factions,  cliques,  malcontents,  and  dem- 

190 


REPRESENTATIVE  LEGISLATION 

agogiies,  to  force  upon  the  people  projects  of  partisan, 
freak,  or  unnecessary  legislation." 

As  to  the  referendum,  there  is  no  other  veto  power 
in  Switzerland.  While  it  is  not  so  intelligently  exer- 
cised as  it  would  be  by  an  upright  executive,  yet  it  has 
occasionally  proved  an  important  check.  The  most 
striking  general  result  is  seen  in  the  relatively  small 
number  of  voters  who  will  vote  upon  laws ;  and  while 
statutes  have  been  passed  to  compel  voting,  their  pro- 
visions have  simply  increased  the  great  number  of 
blank  votes. 

The  most  serious  tendency  under  our  present  sys- 
tem is  seen  in  the  multiplication  of  statutes,  which 
threatens  to  destroy  liberty  and  even  to  engulf  our  civ- 
ilization. But  much  of  this  legislative  rubbish  is  the 
product  of  those  who  are  given  to  exploiting  them- 
selves as  the  especial  champions  of  the  people  or  is 
the  result  of  the  readiness  of  the  legislator  to  respond 
to  what  he  thinks  is  the  popular  demand.  The  mem- 
ber who  is  most  disposed  to  cast  a  negative  vote  is 
stigmatized  as  a  reactionary.  It  is  not  difficult  to 
place  the  most  immature,  visionary,  and  apparently 
popular  schemes  upon  the  statute-books  of  some  of  the 
oldest  and,  until  recently,  most  conservative  states  of 
tlie  Union.  In  one  historic  commonwealth  the  princi- 
pal avocation  of  the  people  soon  promises  to  be  poli- 
tics, assuming  that  they  shall  pay  due  attention  to  their 
political  duties,  and  the  next  "reform"  will  not  un- 
naturally be  the  passage  of  a  law  to  pay  the  voter  out 

191 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

of  the  public  treasury  for  the  demand  made  upon  him 
in  listening,  through  each  recurring  summer,  to  the 
wooing  of  self-constituted  candidates — and  there  can 
well  be  no  other  candidates ;  in  voting  upon  their 
claims;  and  finally,  in  following  the  campaign  con- 
ducted by  the  parties,  and  in  voting  in  the  chief  elec- 
tion. The  essential  remedy  for  checking  legislation 
would  seem  to  be  the  education  of  the  people  so  that 
they  will  present  a  body  of  sound  and  definite  opinion 
to  which  the  representative  may  respond.  This  work 
must  be  done  by  the  people  themselves,  and  it  can  be 
aided  greatly  by  the  newspapers  if  they  will  pander 
less  to  sensationalism,  indulge  less  in  defamation  of, 
the  agencies  of  government,  and  seek  to  become  the 
veracious  chroniclers  of  their  times. 

We  should  not  experiment  lightly  with  the  funda- 
mental principles  of  our  government  and  trust  to  our 
good  fortune  to  escape  danger.  It  is  well  to  be  an 
optimist,  at  least  so  far  as  faith  is  concerned,  in  the 
final  triumph  of  good  in  the  universe;  but  we  should 
be  careful  not  to  follow  too  willingly  those  profes- 
sional optimists  and  political  Micawbers  who  are 
always  sure,  in  whatever  condition  of  danger  we  put 
ourselves,  that  something  will  turn  up  to  our  advan- 
tage. One  of  the  most  radical  mistakes  our  nation  has 
ever  made  was  contributed  to  in  large  measure  by 
well-meaning  people  who  employed  eulogiums  upon 
their  own  optimism  instead  of  arguments,  and  de- 
nounced as  pessimists  those  who  did  not  cheerily  agree 
with  them.     Faith  that  things  will  ultimately  come  out 

192 


REPRESENTATIVE  LEGISLATION 

well  does  not  mean  that  we  may  recklessly  take  the 
next  step. 

It  should  be  remembered  that  civilization  has  some- 
times moved  backward  for  a  time,  tlial  li1)crty  has  been 
submerged,  and  that  great  and  powerful  nations  have 
been  brought  to  naught.  Instead  of  changing  our  sys- 
tem of  government  because  of  the  existence  of  evils 
which  have  existed  since  the  beginning  of  time,  and 
instead  of  attempting  to  seek  refuge  in  a  demagogue's 
paradise,  our  people  should  be  incited  to  study  closely 
the  problems  of  government,  to  set  higher  standards 
for  their  own  conduct,  with  the  result  that  higher  stand- 
ards will  be  followed  by  their  chosen  agents ;  and  there 
is  no  evil  for  which  the  initiative,  the  referendum,  and 
the  recall  are  proposed  as  a  remedy  that  cannot  effect- 
ively be  dealt  with  under  our  republican  institutions 
without  the  disintegration,  demoralization,  and  ulti- 
mate destruction  of  regulated  liberty  and  of  individual 
rights  likely  to  follow  from  the  application  of  those 
reactionary  policies,  just  as  they  have  followed  them 
when  applied  upon  a  large  scale  in  history. 


CHAPTER  VIII 

A    DEFENCE    OF   DIRECT    LEGISLATION  ^ 

Intelligent  and  profitable  discussion  of  practical 
problems  of  social  or  governmental  improvement  must 
include  full  recognition  and  due  consideration  of  the 
forces  controlling  human  action.  Society  and  govern- 
ment are  purely  organizations  of  human  beings,  and 
their  limitations  and  possibilities  are  measured  by  the 
average  of  individual  development.  The  desideratum 
is  to  give  the  greatest  freedom  to  beneficial  influences, 
and  to  restrain  all  tendencies  toward  evil  influences. 
Successful  and  permanent  government  must  rest  pri- 
marily on  recognition  of  the  rights  of  men  and  the 
absolute  sovereignty  of  the  people.  Upon  these  prin- 
ciples is  built  the  superstructure  of  our  republic.  Their 
maintenance  and  perpetuation  measure  the  life  of  the 
republic.  These  policies,  therefore,  stand  for  the 
rights  and  liberties  of  the  people,  and  for  the  power 
and  majesty  of  the  government  as  against  the  enemies 
of  both. 

Delegated    government    exists    where    the    public 

1  By  Senator  Jonathan   Bourne,  Jr.    Reprinted,  by  permission, 
from  the  Atlantic  Monthly,  January,  1912. 

194 


A   DEFENCE   OF   DIRECT   LEGISLATION 

servant  owes  his  nomination  and  election  to  known 
individuals — political  bosses,  caucus,  convention  and 
legislative  managers,  or  campaign  contributors — thus 
establishing  personal  obligations  and  accountability, 
resulting  in  service  for  selfish  interests.  Popular  gov- 
ernment exists  where  the  public  servant  is  under  ob- 
ligation to  and  solely  accountable  to  the  composite 
citizen,  individual  unknown.  This  necessarily  results 
in  public  service  for  the  general  welfare,  and  not  for 
any  selfish  interest,  the  public  servant  realizing  that 
otherwise  he  must  be  recalled,  or  will  certainly  fail  of 
reelection. 

Because  society  and  government  should  be  based 
upon  a  full  recognition  of  the  elemental  forces  con- 
trolling human  action,  I  urge  the  reader's  careful  at- 
tention to  my  analysis  of  these  forces.  I  assert  that 
either  impulse  or  deduction,  followed  by  conviction, 
controls  all  human  action.  If  the  individual  be  con- 
fronted with  the  necessity  for  immediate  action,  then 
impulse  arising  from  emotion,  such  as  love,  hatred, 
anger,  sympathy,  sentiment,  or  appetite,  is  the  deter- 
mining force.  But  when  the  individual  has  days, 
weeks,  or  months  to  consider  his  course,  then  deduc- 
tion, followed  by  conviction,  is  the  determining  force. 
Without  conviction,  there  will  be  no  action. 

Individual  action  should  be  guided  by  reason,  but 
is  frequently  emotional.  Community  action,  as  in  an 
election,  must  be  based  upon  conviction  resulting  from 
analysis  and  deduction. 

I  assert  that  self-interest  is  the  force  controlling 

195 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

every  future  or  postponed  action  of  the  individual — 
not  necessarily  always  selfish  interest,  for  sometimes 
the  individual  is  satisfied  with  his  participation  in  the 
improved  general  welfare  incident  to  the  action.  Gen- 
erally, however,  the  individual's  action,  when  unre- 
strained, is  governed  by  his  own  selfish  and  personal 
interest. 

No  two  people  in  the  world  are  exactly  alike ;  con- 
sequently each  individual  has  a  different  point  of  view 
or  idea  as  to  what  constitutes  his  own  particuar  per- 
sonal or  selfish  interest.  Where  individuals  act  col- 
lectively or  as  a  community — as  they  must  under  the 
initiative,  referendum  and  recall — an  infinite  number 
of  different  forces  are  set  in  motion,  most  of  them 
selfish,  each  struggling  for  supremacy,  but  all  differ- 
ent because  of  the  difference  in  the  personal  equations 
of  the  different  individuals  constituting  the  commu- 
nity. Because  of  their  difference,  friction  is  created — 
each  different  selfish  interest  attacks  the  others  because 
of  its  difference.  No  one  selfish  interest  is  powerful 
enough  to  overcome  all  the  others ;  they  must  wear 
each  other  away  until  general  warfare,  according  to 
the  views  of  the  majority  acting,  is  substituted  for  the 
individual  selfish  interest. 

If  all  the  individual  units  of  society  were  alike, 
then  selfishness  would  dominate  not  only  the  indi- 
vidual but  the  community  action  as  well.  But  so  long 
as  no  two  people  are  alike,  just  so  long  will  selfishness 
dominate  the  individual  if  permitted  to  act  indepen- 
dently, while  general  w^elfare  must  control  all  com- 

196 


A   DEFENCE  OF   DIRECT   LEGISLATION 

miinity  action;  for  if  the  individual  cannot  secure  the 
gratification  of  his  own  selfish  desire,  then  he  must 
rest  satisfied  with  the  improved  general  welfare  in 
which  he,  as  one  of  the  units  of  the  community,  is  a 
proportional  participant. 

This  logic  applies  to  a  community  or  a  class. 
Under  the  initiative,  referendum  and  recall  there  can 
be  no  class  or  community  action  against  the  general 
welfare  of  the  citizens  constituting  the  zone  of  action. 
The  individual,  through  realization  of  the  impossibil- 
ity of  securing  special  legislation  for  himself  and 
against  the  general  welfare  of  the  community,  soon 
ceases  his  efforts  for  special  privilege  and  contents 
himself  with  efiforts  for  improved  general  welfare. 
Thus  the  individual,  class  and  community  develop 
along  lines  of  general  welfare  rather  than  along  lines 
of  selfish  interest. 

In  further  refutation  of  the  unwarranted  fear  of 
hasty  or  unwise  community  action,  I  assert  that  no  in- 
dividual will  ever  vote  for  or  willingly  assent  to  a 
change,  unless  satisfied  that  the  change  will  directly 
benefit  him  individually,  or  that  the  action  will  bring 
improved  general  welfare  to  the  community,  in  which 
event  he  is  satisfied  with  proportional  participation  in- 
cident to  that  improvement.  Tn  other  words,  commu- 
nity action  determines  the  average  of  individual  inter- 
ests, and  secures  the  greatest  good  for  the  greatest 
number,  which  is  the  desideratum  of  organized  so- 
ciety. 

Hence  I  again  assert  that  because  of  the   forces 

197 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

controlling  all  human  action  the  people  cannot  under 
the  initiative  enact  legislation  against  general  welfare 
or  in  favor  of  any  selfish  interest,  nor  will  they  select 
any  public  servant  who,  in  their  opinion,  will  be  domi- 
nated by  any  selfish  interest.  Though  I  grant  they 
may  make  a  mistake  in  selecting  public  servants,  I 
assert  that  they  will  not  make  the  same  mistake  twice 
in  the  same  individual ;  that  is,  under  an  efficient  direct 
primary  law  and  corrupt  practices  act,  the  people  will 
not  renominate  an  individual  who  has  failed  to  serve 
faithfully  the  community  he  represents. 

I  have  demonstrated  that  under  the  initiative  and 
referendum  the  people  cannot  legislate  against  the  gen- 
eral welfare,  and  by  the  same  logic  I  assert  that  under 
the  recall  the  people  will  never  recall  a  public  servant, 
judicial  or  otherwise,  who  serves  the  general  welfare. 

To  elucidate  the  subject,  I  shall  give  a  few  con- 
crete illustrations.  Suppose  that  in  a  city  of  twenty- 
five  thousand  inhabitants,  where  there  are  four  thou- 
sand voters,  a  private  corporation  owns  the  water 
system  and  charges  exorbitant  rates  for  the  service. 
The  self-interests  of  probably  twenty  thousand  of  the 
inhabitants  would  require  municipal  ownership  of  the 
water  system  as  a  means  of  improving  the  service  and 
reducing  the  cost,  but  the  self-interests  of  perhaps  five 
thousand  of  the  inhabitants  require  continuation  of 
private  ownership,  because  these  individuals  are  either 
stockholders  in  the  company,  employees  of  the  com- 
pany, recipients  of  business  patronage  from  the  com- 
pany, or  political  beneficiaries  of  the  system  of  private 

198 


A   DEFENCE   OF    DIRECT   LEGISLATION 

ownership.  These  few  individual  self-interests — un- 
der the  existing  system  of  convention,  nomination,  and 
legislation  through  a  city  council — are  able,  through 
control  of  the  press  and  the  manipulation  of  nomi- 
nations and  municipal  legislation,  to  prevent  or  delay 
the  efforts  of  the  vast  majority  to  change  the  system 
to  one  of  public  ownership. 

Lender  the  initiative,  which  would  permit  direct 
legislation  on  the  subject,  this  question  could  be  sub- 
mitted to  a  vote  of  all  the  qualified  electors.  Ap- 
plying the  principle  I  have  fully  stated  in  the  fore- 
going paragraphs,  when  this  question  came  up  for 
determination  by  the  voters  there  would  be  conflict  be- 
tween the  self-interests  of  the  individuals,  but  during 
the  campaign  preliminary  to  the  election  the  subject 
would  be  discussed  and  considered  in  all  its  bearings. 
Each  individual  would  make  his  own  deductions  as 
to  his  own  self-interest  and  the  general  welfare  of 
the  community,  with  the  result  that  selfish  interest 
would  be  worn  away  and  the  greatest  good  for  the 
greatest  number  secured.  Unless  a  majority  of  the 
voters  were  convinced  that  public  ownership  would  be 
to  their  interest,  the  proposal  for  public  ownership 
would  be  defeated. 

I  hear  opponents  of  popular  government  asserting 
that  the  people  might  be  misled  and  act  unwisely  on 
a  question  of  this  kind,  and  I  rei)ly  that  they  are  the 
best  judges  of  their  own  self-interest  and  have  a  right 
as  sovereign  citizens  to  determine  the  policies  of  their 
government.     They  will,  at  least,  act  honestly,  whiih 

199 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

cannot  always  be  said  for  city  councils  influenced  by 
the  power  of  a  public  service  corporation  and  pro- 
tected by  the  silence  or  active  defence  of  a  subsidized 
press. 

At  this  place  in  my  discussion  of  the  practical 
operation  of  popular  government  I  deem  it  appro- 
priate to  explain  that  this  article  is  designed  primarily 
as  an  answer  to  an  article  by  Representative  Samuel 
W.  McCall.  It  is  my  endeavor,  however,  to  make  this 
article  complete  in  itself,  and  I  shall  refer  to  Mr.  Mc- 
Call's  article  only  so  far  as  is  necessary  in  order  to 
correct  a  few  errors  into  which  he  has  apparently 
fallen. 

The  failure  of  Mr.  McCall  to  comprehend  the  prac- 
tical operation  of  the  initiative  and  referendum  is  il- 
lustrated by  his  reference  to  the  Columbia  River  fish- 
eries legislation  as  a  case  in  which  the  system  worked 
unsatisfactorily.  Evidently  without  knowing  he  was 
doing  so,  he  cited  an  unquestionable  instance  of  the 
elimination  of  selfishness  and  the  substitution  of  gen- 
eral welfare.  The  case  referred  to  was  the  submission 
of  two  Columbia  River  fishery  bills  to  the  people  of 
Oregon  in  1908.  The  rival  fishing  interests — the  gill- 
net  fishermen  on  the  lower  river  and  the  fish-wheel 
operators  on  the  upper  river — had  conducted  their 
work  so  effectively  as  to  threaten  ruin  of  the  industry 
by  destruction  of  the  fish  liefore  they  could  reach  the 
natural  spawning  grounds.  Almost  every  two  years 
the  rival  fishing  interests  had  carried  their  fight  to  the 
state   lesrislature.   and   the  legislature    failed  to   enact 

200 


A  DEFENCE  OF   DIRECT   LEGISLATION 

any  adequate  legislation  for  the  protection  of  the  natu- 
ral supply  of  fish.  The  state  was  maintaining  hatch- 
eries for  the  artificial  propagation  of  salmon,  hut,  not- 
withstanding the  maintenance  of  this  work,  the  fish 
supply  was  steadily  diminishing. 

Believing  that  they  could  promote  their  own  sel- 
fish interests  and  eliminate  their  rivals  by  resort  to 
the  initiative,  the  fish-wheel  operators  of  the  upper 
river  proposed  a  bill  practically  prohibiting  gill-net 
fishing  on  the  lower  river,  and  the  gill-net  fishermen 
proposed  a  bill  prohibiting  fish-wheel  operations  on  the 
upper  river.  These  two  measures,  each  initiated  by 
selfish  interests,  were  submitted  to  a  vote  of  the  people. 
During  the  campaign  the  rival  interests  presented  their 
arguments,  not  only  through  the  publicity  pamphlet, 
but  through  the  newspapers  and  by  circular  letters. 
The  people  of  the  state  gave  the  matter  careful  con- 
sideration, and,  believing  that  the  general  welfare  re- 
quired that  the  fish  themselves  be  protected  from  ex- 
termination, they  adopted  both  bills. 

The  people  having  temporarily  terminated  fishing 
on  the  Columbia  River,  the  legislature,  which  had 
heretofore  failed  to  do  its  duty,  responded  to  the 
popular  will  and  enacted  a  law  which  permits  fishing 
within  reasonable  regulations,  but  provides  opportu- 
nity for  the  fish  during  closed  seasons  to  reach  their 
natural  spawning  grounds.  I  thank  Mr.  McCall  for 
calling  attention  to  this  instance  in  which  the  com- 
posite citizen,  acting  under  the  initiative,  eliminated 
selfish  interests  and  substituted  general  welfare. 

14  201 


THE   INITIATIVE,   REFERENDUM   AND   RECALL 

Similar  results  are  accomplished  through  the  ref- 
erendum. Selfish  interests  are  frequently  able  to  in- 
fluence the  individual  members  of  a  legislature  to  such 
an  extent  as  to  secure  enactment  of  laws  granting 
special  privileges.  On  the  other  hand,  there  have  been 
innumerable  instances  in  which  members  of  legisla- 
tures introduced  bills  attacking  the  business  interests 
of  large  corporations,  for  the  purpose  of  compelling 
such  corporations  to  pay  for  the  abandonment  or  de- 
feat of  such  bills.  In  the  one  case,  selfish  interests 
were  able  to  buy  legislation  for  their  own  benefit  and 
against  general  welfare;  while  in  the  other  case  cor- 
rupt legislators  had  power  to  blackmail  corporations. 
Such  transactions  are  impossible  where  the  refer- 
endum is  in  force,  for  the  people  have  power  to  defeat 
grants  of  special  privileges  against  general  welfare; 
and  if  a  corporation  is  unjustly  attacked  by  a  black- 
mailing bill,  it  can  refuse  to  pay  tribute  and  appeal 
directly  to  the  people  under  the  referendum,  with  full 
assurance  that  the  people  will  not  give  their  approval 
to  legislation  of  that  character.  I  believe  every  ob- 
server of  legislative  controversies  involving  the  gen- 
eral welfare  of  state  or  city  will  agree  that  selfish 
interest  frequently  dominates  individual  action,  where- 
as if  community  action  had  been  possible,  the  result 
would  have  been  advantageous  to  general  welfare. 

The  initiative  affords  any  citizen  who  has  evolved 
a  solution  of  a  governmental  problem  an  opportunity 
for  demonstration  of  its  merits.  Under  a  system  of 
delegated  legislation  only,  his  ideas  could  be,  and  quite 

202 


A   DEFENCE   OF   DIRECT   LEGISLATION 

likely  would  be,  referred  to  some  committee  where 
further  action  would  be  prevented  through  the  influ- 
ence of  selfish  interest.  Where  the  initiative  exists  he 
can  present  his  ideas  in  the  definite  form  of  a  proposed 
bill  if  eight  per  cent,  of  the  legal  voters  consider  it 
worthy  of  consideration  and  sign  a  petition  for  its 
submission  to  a  popular  vote. 

The  system  encourages  every  citizen,  however 
humble  his  position,  to  study  the  problems  of  govern- 
ment, city  and  state,  and  to  submit  whatever  solution 
he  may  evolve  for  the  consideration  and  approval  of 
others.  The  study  of  the  measures  and  arguments 
printed  in  the  publicity  pamphlet  is  of  immense  edu- 
cational value.  The  system  not  only  encourages  the 
development  of  each  individual,  but  tends  to  elevate 
the  entire  electorate  to  the  plane  of  those  who  are 
most  advanced.  Huw  different  from  the  system  so 
generally  in  force,  which  tends  to  discourage  and  sup- 
press the  individual ! 

Speaking  of  the  initiative  and  referendum,  Air. 
McCall  says  that,  "  In  effect  they  propose  the  substi- 
tution of  direct  for  representative  government,  the 
establishment  of  the  direct  acti(jn  of  the  ])e()])le,  not 
merely  in  selecting  their  agents,  but  in  framing  and 
executing  their  laws."  And  again,  "  It  is  now  pro- 
posed to  abandon  the  discovery  of  modern  times  " 
(government  by  the  people,  acting  not  in  person,  but 
by  representatives  chosen  by  themselves). 

In  view  of  the  clear  declaration  of  our  inilialive 
and  referendum  amendment,  that  "  the  legislative  au- 

203 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

thority  of  the  state  shall  be  vested  in  a  legislative  as- 
sembly, but  the  people  reserve  to  themselves  power  to 
propose  laws  and  amendments  to  the  constitution,  and 
to  enact  or  reject  the  same  at  the  polls,"  my  inclina- 
tion at  first  was  to  believe  that  the  writer  did  not  in- 
tend to  convey  the  idea  that  representative  government 
had  been  "  abandoned  "  and  direct  government  "  sub- 
stituted "  therefor;  but  this  liberal  construction  of  his 
language  became  impossible  when  I  read  the  follow- 
ing in  the  same  connection : 

"  Is  it  for  the  interest  of  the  individual  members 
of  our  society  to  have  the  great  mass  of  us  pass  upon 
the  intricate  details  of  legislation,  to  execute  our  laws, 
and  to  administer  justice  between  man  and  man? 
That  I  believe  to  be  in  substance  the  question  raised 
by  the  initiative,  the  referendum  and  the  recall,  as 
they  are  now  practically  applied  in  at  least  one  of  the 
states  of  the  Union,  the  example  of  which  is  held  up 
as  a  model  to  the  other  states." 

I  deny  unequivocally  that  in  effect  or  in  substance 
we  in  Oregon  have  abandoned  representative  govern- 
ment, or  that  the  mass  of  the  people  pass  upon  the 
intricate  details  of  legislation,  execute  the  laws,  or  ad- 
minister justice  between  man  and  man.  Let  us  con- 
sider the  facts.  At  the  last  general  election  the  people 
of  Oregon  voted  upon  thirty-two  measures.  Of  these 
measures,  eleven  were  constitutional  amendments,  of 
which  four  were  adopted  and  seven  rejected.  Of  the 
twenty-one  bills  submitted  to  the  people  only  five  were 
enacted,  and  sixteen  rejected.     The  result  of  the  direct 

204 


A   DEFENCE   OF   DIRECT   LEGISLATION 

^•ote  was  nine  measures  adopted.  The  Oregon  legis- 
lature held  a  forty-day  session  last  January,  consid- 
ered seven  hundred  and  twenty-five  bills  and  two  hun- 
dred and  thirty-five  resolutions  or  memorials.  Two 
hundred  and  seventy-five  of  the  bills  were  enacted. 
Evidently  the  extent  of  substitution  of  direct  legisla- 
tion is  indicated  by  the  ratio  of  nine  to  two  hundred 
and  seventy-five.  This  is  not  exactly  "  abandonment  " 
of  the  representative  system.  Of  the  relative  merits 
of  the  two  systems  I  shall  say  more  later,  but  leave 
that  subject  for  the  present  in  order  to  continue  the 
denial  of  statements  quoted  above. 

I  deny  that  the  people  of  Oregon  have  executed 
the  laws  except  through  their  duly  chosen  public 
servants.  If  the  statement  quoted  is  intended  to  apply 
to  the  recall.  I  reply  by  saying  that  there  has  been  no 
exercise  of  the  recall  against  any  state,  district,  or 
county  officer,  though  there  was  talk  of  recalling  a 
circuit  judge.  I  have  no  doubt  that  administrative 
ofificers  have  been  influenced  to  some  extent  by  the 
fact  that  they  are  subject  to  recall.  That  is  one  pur- 
pose of  the  recall.  Experience  with  public  officers 
from  one  ocean  to  the  other  justifies  the  belief  that 
some  of  them  will  be  influenced  by  the  w'ishes  of  the 
men  to  whom  they  owe  their  positions  and  to  whom 
they  are  accountable  at  the  end  of  their  terms.  Under 
the  former  system  of  machine  domination  we  learned 
that  public  officers  were  frequently  influenced  by  the 
wishes  of  the  political  bosses,  regardless  of  the  inter- 
ests and  wishes  of  the  people.     If  they  were  influ- 

205 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

enced  by  the  desires  of  men  who  put  them  into  office 
under  the  old  system,  quite  hkely  they  are  influenced 
by  the  wishes  of  the  composite  citizen,  who  gives 
them  their  positions  under  the  new.  The  difiference 
is  that  individual,  selfish  interest  wielded  the  influ- 
ence under  the  old  system,  while  under  the  new  sys- 
tem the  public  officer  knows  that  the  people  as  a 
whole  desire  only  a  square  deal  and  seek  no  special 
privileges. 

I  deny  that  the  mass  of  the  people  have  been  called 
upon  to  administer  justice  between  man  and  man. 
Our  courts  have  proceeded  with  their  work  as  quietly 
and  as  deliberately  as  ever,  though  possibly  with  less 
delay.  It  would  be  impossible  for  the  people  of  Ore- 
gon to  administer  justice  between  man  and  man  in 
any  case,  for,  though  they  have  the  power  to  recall  a 
judge,  they  have  no  power  to  change  the  decision  he 
has  rendered. 

Mr.  McCall  says  that  "  the  prevailing  fault  of 
legislative  bodies  is  political  cowardice,"  and  that 
"  the  mania  of  the  times  is  too  much  legislation  and 
the  tendency  to  regulate  everybody  and  everything 
by  artificial  enactment." 

Conclusive  evidence  that  has  been  uncovered  in 
numerous  legislative  investigations  satisfies  the  people 
of  the  country  that  venality  as  well  as  cowardice  is 
one  of  the  faults  of  legislators.  Neither  venality  nor 
cowardice  can  be  charged  against  the  voters  of  a  com- 
monwealth except  in  those  instances  in  which  public 
affairs  are  so  dominated  by  political  bosses  that  the 

206 


A   DEFENCE   OF    DIRECT   LEGISLATION 

voter  has  no  opportunity  of  exercising  the  right  of 
selection  of  candidates. 

As  I  have  explained  on  previous  occasions,  the 
\\holesale  bartering  of  votes  in  Adams  County,  Ohio, 
and  Danville,  Illinois,  may  be  accounted  for  by  the 
fact  that  for  years  the  voters  had  been  accustomed  to 
mark  their  ballots  for  one  of  two  candidates,  each 
chosen  for  them  by  the  operators  of  the  political  ma- 
chine. Having  learned  by  experience  that  their  votes 
V  ere  ineffective  to  overcome  public  evils,  they  decided 
that  they  might  as  well  profit  by  the  few  dollars  that 
they  could  secure  for  their  votes,  especially  since  the 
character  of  the  public  service  would  not  be  changed 
therel)y.  Whenever  relieved  from  the  domination  of 
political  machines  and  given  opportunity  to  express 
an  effective  choice,  the  voters  of  any  state  will  be 
guilty  of  neither  venality  nor  cowardice,  but  will  go 
to  the  polls  and  honestly  express  their  opinions  upon 
the  (juestions  submitted,  and  upon  their  preference  as 
between  candidates. 

As  I  have  already  shown,  the  last  Oregon  legis- 
lature enacted  two  hundred  and  seventy-five  laws, 
while  the  people  under  the  initiative  and  referendum 
adopted  nine  measures.  If  too  much  legislation  con- 
stitutes a  mania,  as  Mr.  McCall  says,  then  the  evil 
must  be  charged  to  legislatures,  and  not  to  the  system 
of  direct  legislation. 

On  the  whole,  laws  enacted  by  the  people  are  more 
carefully  prepared,  more  widely  discussed,  and  more 
thoroughly  considered  than  are  the  acts  of  a  Icgisla- 

207 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

ture.  A  bill  or  proposed  constitutional  amendment 
submitted  under  the  initiative  must  be  filed  with  the 
secretary  of  state  not  less  than  four  months  before 
the  election.  Prior  to  that  time  the  measure  secures 
publicity  through  the  fact  that  it  must  be  circulated 
for  the  signatures  of  eight  per  cent,  of  the  voters. 
After  the  bills  have  been  filed,  the  promoters  and  op- 
ponents thereof  may  file  arguments  for  or  against. 
It  is  made  the  duty  of  the  secretary  of  state  to  have  a 
full  copy  of  the  title  and  text  of  each  measure,  to- 
gether with  the  arguments  for  and  against,  printed  in 
a  pamphlet,  a  copy  of  which  must  be  mailed  to  every 
registered  voter  not  less  than  fifty-five  days  prior  to 
election.  The  title  of  a  bill  appears  in  the  publicity 
pamphlet  exactly  as  it  will  appear  upon  the  ballot.  In 
this  way  the  voter  secures  the  best  possible  informa- 
tion regarding  the  provisions  of  the  bills,  their  merits 
or  defects,  the  arguments  for  and  against  the  meas- 
ures, and  the  reason  why  they  should  or  should  not  be 
enacted. 

No  such  opportunity  for  the  study  of  measures  is 
afforded  members  of  a  legislature.  The  Oregon  legis- 
lature, for  instance,  is  in  session  only  forty  days,  and 
members  secure  printed  copies  of  the  bills  introduced 
no  sooner  than  the  end  of  the  first  week.  Very  fre- 
quendy  the  important  bills  are  introduced  about  the 
middle  of  the  session  and  the  members  have  copies  of 
these  before  them  for  not  more  than  twenty  days. 
Amendments  are  frequent,  and  sometimes  these  are 
made  as  late  as  the  day  on  which  the  bill  is  passed,  so 

208 


A   DEFENCE   OF   DIRECT   LEGISLATION 

that  legislators  frequently  vote  upon  bills  without 
knowing  their  real  effect. 

We  had  a  conclusive  demonstration  of  this  in  the 
Oregon  legislature  of  1903.  when  the  legislature  re- 
pealed a  statute  which  allowed  every  householder  a 
tax-exemption  of  household  goods  to  the  \alue  of 
three  hundred  dollars.  x\fter  the  legislature  ad- 
journed, members  were  astonished  to  learn  that  they 
had  repealed  such  a  law,  and,  at  a  special  session, 
called  within  a  year,  this  statute  was  re-enacted  by  an 
overwhelming  vote.  Not  even  Mr.  McCall  will  con- 
tend that  legislation  such  as  this  could  be  ignorantly 
passed  under  the  initiative  and  referendum.  Four 
months  of  discussion  will,  beyond  peradventure.  dis- 
close any  serious  fault  or  defect  in  any  proposed 
statute  submitted  under  the  initiative. 

Some  honest  opponents  of  direct  legislation  base 
their  opposition  partly  on  the  fact  that  a  measure  sub- 
mitted under  the  initiative  is  not  susceptible  of  amend- 
ment after  it  has  been  filed  in  the  office  of  the  secre- 
tary of  state.  Instead  of  being  cause  for  criticism, 
this  is  one  of  the  strongest  reasons  for  commenda- 
tion, for  we  have  learned  by  experience  that  one  of 
the  most  common  methods  by  which  vicious  legisla- 
tion is  secured  is  to  introduce  a  harmless  or  a  bene- 
ficial bill  and  let  it  secure  a  favorable  report  from  a 
legislative  committee,  but  with  a  slight  amendment  in- 
serted therein  which  entirely  changes  its  character  or 
effect  in  some  important  particular  and  thereby  serves 
some  selfish  interest.     When  it  is  known  that  a  bill 

209 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

must  be  enacted  or  rejected  exactly  as  drawn,  the 
framers  of  the  measure  will  spend  weeks  and  months 
in  studying  the  subject  and  writing  the  bill  in  order 
to  have  it  free  from  unsatisfactory  features. 

In  actual  practice  in  Oregon  almost  every  proposed 
bill  is  submitted  to  a  considerable  number  of  men  for 
criticism  and  suggestions  before  its  final  form  is  de- 
termined upon.  The  original  draft  undergoes  many 
amendments,  and  these  are  more  carefully  considered 
than  would  be  the  case  if  the  bill  w'cre  before  a  legis- 
lature. Knowing  that  the  bill  will  be  subjected  to  the 
closest  scrutiny  of  all  the  people  for  four  months,  the 
framers  of  the  bill,  desiring  its  passage,  naturally  en- 
deavor to  remove  every  reasonable  objection,  to  make 
all  its  provisions  perfectly  clear,  and  especially  to  re- 
move every  indication  of  bad  faith.  A  bill  to  which 
there  are  many  serious  objections  would  stand  little 
chance  of  adoption  by  a  popular  vote.  When  thus 
drawn  and  submitted,  a  bill  is  in  the  best  possible 
form,  and  there  is  no  possibility  of  its  being  made 
the  instrument  for  the  enactment  of  what  are  com- 
monly called  "  jokers." 

I  do  not  contend  that  a  bill  thus  drawn  will  be 
perfect,  for  no  human  work  is  perfect,  but  I  do  assert 
that  it  will  be  much  better  drawn  than  the  great  ma- 
jority of  bills  presented  to  a  legislature;  and,  if 
adopted,  it  will  be  an  improvement  upon  legislation 
theretofore  in  force  on  the  same  subject.  The  people 
of  a  state  will  never  vote  against  their  own  interests, 
hence  they  will  never  vote  to  adopt  a  law  unless  it 

210 


A   DEFENCE   OF    DIRECT    LEGISLATION 

proposes  a  change  for  the  improvement  of  the  gen- 
eral welfare.  Previous  to  the  last  election,  each  voter 
had  fifty-five  days  in  which  to  consider  thirty-two 
measures,  which,  with  the  arguments  for  and  against, 
were  laid  before  him  in  convenient  printed  form.  This 
gave  him  an  average  of  nearly  two  days  for  the  con- 
sideration of  each  measure.  Assuming  that  many  ot 
the  bills  introduced  in  one  house  never  appear  in  the 
other,  each  member  of  the  Oregon  legislature  was 
called  upon  to  consider  about  five  hundred  bills  in 
forty  days,  or  over  twelve  each  day,  besides  being 
compelled  to  consider  many  resolutions,  motions,  and 
questions  of  a  political  character.  I  assert  that  the 
individual  voters  of  the  state,  in  the  quiet  of  their 
own  homes  in  the  evening,  could  better  consider  and 
decide  upon  an  average  of  one  bill  in  two  days  than 
the  members  of  the  legislature,  amid  the  hurry  and 
strife  and  personal  feeling  incident  to  a  legislative 
session,  could  consider  and  decide  upon  an  average  of 
twelve  bills  a  day. 

It  is  frequently  asserted  that  the  voter  in  Oregon 
is  required  to  pass  upon  thirty-two  measures  in  the 
few  minutes  he  occupies  the  booth  on  election  day. 
Such  is  not  the  case.  He  has  several  wrecks  in  which 
to  determine  how  he  will  \'otc,  and  merely  takes  a  few 
minutes  in  w-hich  to  mark  his  ballot. 

In  his  discussion  of  the  recall,  particularly  as  ap- 
plied to  judges,  Mr.  jMcCall  has  reiterated  a  prevail- 
ing error  as  to  the  i)ractical  operation  of  that  feature 
of  popular  government.     Evidently  he  h;is  been  mis- 

211 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

led  by  accepting  as  true  certain  statements  contained 
in  the  President's  veto  message  of  the  Arizona  state- 
hood bill.  He  says,  for  instance,  that,  when  the  recall 
is  invoked,  the  man  whom  the  people  have  elected  to 
an  office  is  permitted  either  to  resign  in  five  days  or 
to  defend  himself  in  two  hundred  words  upon  pro- 
ceedings to  throw  him  out  in  disgrace.  This  state- 
ment is  incorrect  in  two  particulars.  He  may  neither 
resign  nor  defend  himself,  but  may  quietly  continue  in 
ofBce  until  his  successor  has  been  elected.  He  has 
three  alternatives :  either  to  resign,  to  stand  for  re- 
election, or  to  continue  in  office  and  await  passively 
the  outcome  of  the  recall  proceedings.  H  he  chooses 
to  defend  himself,  he  is  not  limited  to  a  defense  of 
two  hundred  words.  The  two-hundred-word  limit  is 
merely  upon  the  length  of  statement  he  may  make  to 
be  printed  upon  the  official  ballot.  This  is  merely  a 
summary  of  his  defense.  He  is  at  liberty  to  make 
such  other  defense  before  the  people  as  he  may  de- 
sire. 

Moreover,  the  Arizona  constitution,  to  which  Mr. 
McCall  refers,  requires  that  the  legislature  shall  pro- 
vide for  the  payment  of  the  campaign  expenses  of 
any  officer  attacked  under  the  recall.  The  man  or 
men  who  attack  an  officer  under  the  recall  must  pay 
the  expense  of  their  campaign.  The  man  in  office  has 
not  only  the  advantage  of  his  official  record,  the  pres- 
tige of  his  office,  the  desire  of  the  American  voter 
to  give  every  incumbent  of  an  office  a  square  deal, 
but  he  has  the   further  very  material   advantage  of 

212 


A   DEFENCE   OF   DIRECT   LEGISLATION 

payment  of  his  campaign  expenses  out  of  the  puIdHc 
treasury.  Any  officer  who  is  not  able  to  make  out  a 
case  in  his  own  defense  with  all  these  advantages  is 
very  probably  a  fit  subject  for  recall  proceedings. 

Mr.  McCall  further  states  that  it  would  be  a  mat- 
ter of  no  difficulty  for  the  defeated  candidate  to  initi- 
ate a  recall  and  practically  have  the  election  over 
again.  I  challenge  the  citation  of  any  instance  in 
which  experience  has  demonstrated  that  this  criticism 
is  justified.  Experience  in  politics  everywhere  has 
demonstrated  that  the  people  admire  a  "  good  loser." 
They  have  contempt  for  the  man  who,  after  he  has 
been  beaten  in  a  fair  fight,  refuses  to  quit. 

The  recall  amendment  provides  that  a  recall  peti- 
tion shall  not  be  circulated  against  any  officer  until 
he  has  actually  held  his  office  six  months,  except  that 
a  petition  for  recall  of  a  member  of  the  legislature 
may  be  filed  five  days  after  the  legislature  meets. 
Since  a  successful  candidate  takes  office  two  months 
after  election,  and  it  w^ould  ordinarily  require  a  month 
to  circulate  a  recall  petition,  it  is  plain  that  there 
would  be  at  least  nine  months  fcjr  the  subsidence  of 
any  personal  feeling  engendered  during  a  campaign. 
Obviously  a  recall  as  to  members  of  the  legislature 
must  be  operative  while  the  legislature  is  in  session 
to  be  effective. 

Thus  assured  of  an  oppt^rtunity  to  demon.strate 
the  character  of  service  he  will  render,  no  ])ublic  serv- 
ant need  fear  recall  proceedings  growing  out  of  the 
campaign  for  his  election,  unless  his  election  was  se- 

213 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

cured  by  dishonest  means.  Of  course,  in  such  a  case, 
a  recall  might  be  filed  immediately  after  the  expira- 
tion of  the  six  months.  This  would  be  brought,  not 
so  much  by  the  defeated  candidate  or  his  friends,  as 
by  citizens  in  general,  whose  right  it  is  to  have  every 
election  conducted  fairly  and  honestly. 

The  assumption  that  a  recall  proceeding  is  an  im- 
position upon  a  public  officer  is  not  founded  on  good 
reason.  An  individual  has  no  personal  right  to  public 
office,  though  some  few,  who  under  delegated  govern- 
ment have  bought  their  offices,  may  think  they  have. 
The  office  belongs  to  the  people,  and  they  are  entitled 
to  have  it  filled  by  whomsoever  they  please.  Every 
employer  in  private  life  reserves  the  right  to  discharge 
his  employee  whenever  the  service  rendered  is  unsatis- 
factory. 

The  same  principle  should  apply  to  the  electorate 
in  the  employment  of  a  public  servant.  In  fact,  this 
right  would  be  a  matter  of  understanding  and  con- 
tract where  a  citizen  seeks  and  accepts  a  public  office 
with  the  knowledge  that  the  recall  is  one  of  the  laws 
of  his  state. 

Mr.  McCall  asserts  that  where  the  recall  is  in 
force  "  the  judge,  in  order  to  feel  secure  in  his  office, 
would  have  to  consult  the  popular  omens  rather  than 
the  sources  of  the  law."  Upon  the  same  reasoning, 
where  the  convention  system  exists  with  a  boss  in 
control,  the  judge,  in  order  to  feel  secure  in  his  office, 
would  consult  the  wishes  of  the  boss  rather  than  the 
sources  of  the  law.     There  is  this  difference  in  favor 

214 


A   DEFENCE   OF   DIRECT   LEGISLATIOxN 

of  the  intiuence  of  the  recall — popular  influence  would 
be  exerted  in  behalf  of  the  welfare  of  the  majority, 
whereas  the  influence  of  the  political  boss  is  exerted  in 
behalf  of  the  interests  of  a  very  small  minority,  which 
is  generally  himself  or  a  campais^n  contributor. 

Some  people  express  the  fear  that  the  rights  of  a 
minority  will  be  disregarded  by  the  tyranny  of  the 
majority.  They  are  really  most  concerned  for  the 
perpetuation  of  special  and  unjust  privileges  for  the 
small  minority.  Neither  election  nor  appointment  to  a 
legislative,  executive,  or  judicial  ofiice  carries  coinci- 
dent personal  or  official  infallibility. 

There  is  very  little  weight  to  argument  based  upon 
allusion  to  the  democracy  of  Athens,  or  to  the  experi- 
ence of  other  ancient  nations  which  made  more  or  less 
progress  toward  a  popular  form  of  government.  In 
the  last  two  thousand  years  conditions  have  greatly 
changed.  Electricity  and  steam,  the  telegraph,  tele- 
phone, railroad,  and  steamboat  have  established  media 
of  instantaneous  intercommunication  of  ideas,  and 
rapid  cooperation  of  action  in  the  individual  units  of 
society. 

In  less  than  a  decade  the  people  of  Oregon  have 
voted  upon  sixty- four  measures.  Surely,  if  the  initi- 
ative and  referendum  is  a  destructive  system,  as  its 
enemies  allege,  there  would  be  abundant  evidence 
thereof  in  the  recent  history  of  that  state;  aiul  it 
should  not  be  difficult  for  any  citizen  to  produce  con- 
clusive and  absolutely  convincing  evidence  to  that  ef- 
fect.    No  one  has  done  so  or  can  do  so. 

215 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

Both  reason  and  experience  demonstrate  the  prac- 
ticabihty  and  importance  of  the  initiative  and  referen- 
dum. My  analysis  of  the  forces  controlHng  all  human 
action,  as  set  forth  in  the  early  paragraphs  of  this  ar- 
ticle, proves  the  impossibility  of  a  community  voting 
against  the  general  welfare.  Any  person  interested 
in  the  subject  will  observe  by  a  study  of  results  in 
Oregon  that  this  has  been  demonstrated  in  that  state. ^ 

1  See  Appendix,  p.  349. 


CHAPTER  IX 

THE    PRACTICAL    WORKINGS    OF    THE    INITIATIVE    AND 
REFERENDUM    IN    OREGON 

At  the  Pittsburgh  meeting  of  the  National  Munici- 
pal League,  in  1909.  Joseph  N.  Teal.  Esq.,  of  the 
Portland  (Oregon)  bar,  presented  the  following  ac- 
count of  the  practical  workings  of  the  initiative  and 
referendum  in  Oregon : 

The  exact  date  at  which  agitation  for  the  initiative 
and  referendum  began  in  Oregon  is  somewhat  uncer- 
tain. It  has  been  stated  that  a  paper  published  in  Port- 
land some  time  from  1885  to  1888,  called  The  Vidcttc, 
advocated  the  measure.  Its  first  introduction  into  the 
legislative  assembly  was  in  1893  in  the  form  of  a  reso- 
lution introduced  by  Senator  Vanderburg.  Very  few 
of  the  members  at  tliat  time  knew  what  the  terms 
meant.  At  the  session  of  1895  the  agitation  took  the 
form  of  a  demand  for  a  constitutional  convention  and 
was  defeated  by  one  vote.  In  1897  there  was  no  ses- 
sion. At  the  regular  session  of  1899  the  amendment 
was  passed  for  submission  to  the  people  by  a  large 
majority,  and  in  1901  it  was  passed  for  the  second 
time  and  was  submitted  almost  without  opposition  in 
the  legislature. 

15  217 


THE   INITIATIVE,   REFERENDUM   AND   RECALL 

Formerly  under  our  constitution  all  proposed 
amendments  had  to  be  passed  by  two  successive  legis- 
latures before  submission  to  the  people.  This  amend- 
ment was  submitted  to  the  people  June  2,  1902,  and 
received  62,024  affirmative  votes,  5,668  being  cast 
against  it.  At  the  election  held  June  6,  1906,  it  was 
applied  to  local,  special  and  municipal  law^s.  How- 
ever, the  charter  of  the  city  of  Portland,  which  was 
prepared  by  a  charter  board  approved  by  the  people  at 
the  election  held  in  the  month  of  June,  1902,  and 
passed  by  the  legislature  at  the  session  of  1903,  con- 
tained provisions  for  the  initiative.  It  has  therefore 
been  in  operation  in  the  state  for  seven  years  and  in 
this  city  for  six  years.  While  the  time  it  has  been 
in  operation  is  hardly  long  enough  to  develop  all  its 
advantages  and  disadvantages,  yet  its  workings  have 
been  sufficiently  observed  to  enable  one  to  form  some 
conclusion  as  to  its  merits  and  demerits. 

Although  both  powers  are  generally  linked  to- 
gether, they  should  be  considered  separately.  One  is 
a  positive  force,  the  other  negative.  The  first  stands 
for  affirmative  action,  the  second  is  a  method  devised 
for  the  veto  of  legislation  the  people  do  not  approve. 
The  consequence  is  that  there  is  very  much  great- 
er opposition  to  the  initiative  than  to  the  referen- 
dum. 

In  my  opinion,  the  causes  which  led  to  its  adoption 
are  the  same  that  are  in  evidence  throughout  the  coun- 
try generally.  The  people  felt  the  government  was 
getting  away  from  them  and  they  desired  a  more  di- 

218 


IN  OREGON 

rect  control,  both  in  the  making  of  laws  and  in  their 
enforcement,  than  they  enjoyed.  More  potent,  how- 
ever, than  this  was  the  failure  of  the  legislature  to 
respond  to  the  demand  of  the  people  for  the  enactment 
of  laws  respecting  the  control  of  corporations,  taxa- 
tion and  kindred  subjects  affecting  public  interests. 
Boss-ridden  legislatures  and  councils  were  the  rule 
rather  than  the  exception,  and  the  people  were  tired 
of  coaxing  and  pleading  to  secure  desired  legislation. 
Legislatures  and  councils  were  too  often  more  solici- 
tous for  special  than  for  the  public  interests,  and  the 
people  wanted  to  secure  some  effective  and  direct 
method  of  making  their  influence  felt  and  their  wishes 
respected. 

The  difficulty  in  securing  the  enactment  of  the 
Australian  ballot  law  and  the  registration  law  are 
examples  of  laws  the  people  wanted,  and  which  were 
enacted  grudgingly  and  after  long-continued  agitation. 
Other  important  measures  failed  repeatedly  to  pass. 
The  combined  effect  was  to  create  a  sentiment  (as 
shown  by  the  vote)  overwhelmingly  in  favor  of  the 
new  procedure.  After  its  adoption  tax  laws  and  other 
public  measures  were  proposed  under  it  and  passed, 
the  consequence  being  that  the  same  influences  which 
prevented  the  passage  of  the  same  character  of  laws 
by  the  legislature  are  the  deadliest  foes  of  the  initiative 
and  referendum,  although  this  is  not  to  say  that  there 
are  not  very  many  good  citizens  who  are  opposed  to  it 
both  on  principle  and  in  practice.  Like  all  laws  or  new 
methods  in  government,  experience  has  demonstrated 

219 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

that  changes  in  some  particulars  are  necessary.  These 
I  shall  refer  to  later. 

While  the  powers  reserved  under  the  initiative  and 
referendum  have  a  restraining  influence  on  the  legis- 
lators and  operate  as  a  check  on  vicious,  extravagant 
and  special  legislation,  there  is  also  a  tendency  to  cause 
the  legislator  to  feel  less  personal  responsibility  and  to 
leave  to  the  people  matters  on  which  he  should  act.  It 
also  provides  what  seems  to  some  too  easy  and  expe- 
ditious a  method  of  submitting  amendments  to  the 
constitution.  Indeed,  some  claim  that  substantially  we 
have  no  constitution  left  in  the  sense  it  is  generally  un- 
derstood. 

Formerly,  it  required  not  only  a  majority  of  those 
voting  at  an  election,  but  a  proposed  amendment  was 
required  to  be  agreed  to  by  a  majority  of  all  the  mem- 
bers elected  to  each  house  in  two  successive  legislative 
assemblies  before  submission  to  the  people.  Now  an 
amendment  may  be  proposed  directly  by  the  people 
and  a  majority  of  those  voting  on  it  at  any  general 
election  is  sufficient  to  carry  the  proposition.  The 
initiative  petition  for  the  submission  of  an  amendment 
must  be  filed  with  the  secretary  of  state  not  less  than 
four  months  before  the  election  at  which  it  is  to  be 
voted  upon,  and  must  be  submitted  at  a  regular  elec- 
tion unless  otherwise  ordered  by  the  legislative  assem- 
bly. This  direct  method  of  amending  the  constitution 
unquestionably  imposes  very  grave  responsibilities 
upon  the  electors. 

When  originally  adopted  it  was  generally  thought 

220    • 


IN  OREGON 

that  only  measures  of  great  importance  and  of  limited 
number  would  be  submitted  under,  the  initiative.  In 
practice  it  has  been  found  that  such  is  not  the  case, 
although  this  statement  is  subject  to  some  qualifica- 
tions. Not  unnaturally  when  it  was  first  adopted  quite 
a  number  of  laws  were  proposed  and  nearly  all  car- 
ried, the  enactment  of  which  had  been  demanded  over 
and  over  again  by  the  people,  only  to  be  defeated  by 
the  legislature.  In  other  words,  it  was  but  the  inevita- 
ble result  of  the  people  having  the  power  to  carry  out 
their  will  which  had  been  hitherto  thwarted  by  the 
failure  of  the  legislators  to  act  at  all,  or  if  they  did  act, 
to  act  adversely.  It  is  also  claimed  that  laws  submitted 
under  the  initiative  may  be,  and  are  sometimes,  pre- 
pared from  a  biased  or  partisan  standpoint,  and  thus 
are  liable  to  be  unfair,  ill-considered,  or  poorly  pre- 
pared, and.  not  being  susceptible  of  amendment,  must 
be  adopted  or  rejected  as  presented.  There  is  truth  in 
this  criticism.  At  the  same  time,  there  is  considerable 
expense  attached  to  submitting  a  law,  and  the  people, 
if  they  understand  it,  will  not  support  an  unfair  or 
one-sided  measure.  The  chief  difiiculty  in  this  respect, 
however,  is  in  getting  the  facts  before  the  public  so 
that  they  understand  them.  A  popular  demand  crystal- 
lized into  the  form  of  a  law  headed  by  a  "  catchy  " 
title  is  too  apt  to  receive  favorable  consideration,  the 
details  and  imperfections  being  overlooked  in  the  de- 
sire to  obtain  the  ultimate  purpose. 

Another  objection  is,  that  it  takes  too  much  of  the 
time  of  the  people   in  studying  proposed  legislation. 

221 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

On  the  other  hand,  it  might  be  urged  that  to  compel 
people  generally  to  study  and  understand  the  condi- 
tions under  which  they  are  living  could  scarcely  be 
called  an  objection.  However,  even  if  not  necessary, 
it  has  been  found  advisable  for  organizations  to  issue 
statements  to  voters  covering  the  questions  to  be  sub- 
mitted. They  generally  consist  of  a  short  statement 
of  the  measure  with  the  number  on  the  ballot  and  the 
recommendations  of  the  organization  on  the  particu- 
lar cjuestion.  The  Taxpayers'  League  of  this  city  has 
been  especially  active  in  this  work,  but  it  can  be  readily 
understood  that  the  printing  and  circulating  of  these 
statements  and  reports  costs  considerable  money  and 
with  two  elections  every  year,  one  the  city,  the  other 
the  state  and  county,  it  keeps  those  interested  pretty 
busy. 

I  think  the  foregoing  are  the  chief  objections  to 
the  initiative,  except  such  as  are  urged  by  those  wdio 
are  opposed  to  it  on  principle,  or  by  the  conservatives 
who  view  with  alarm  changes  in  any  direction,  or  by 
those  who  wish  to  limit  rather  than  enlarge  either  the 
powers  or  the  responsibilities  of  the  people  as  a  whole. 
On  the  other  hand,  the  initiative  places  in  the  hands  of 
the  people  the  power  to  inaugurate  such  reforms, 
changes  of  policy  or  to  enact  such  laws  as  they  may  de- 
sire or  believe  to  be  to  their  best  interests.  A  num- 
ber of  changes  have  been  suggested,  amongst  them 
being  the  following: 

I.  To  provide  that  a  larger  number  of  petitioners 
should  be  required  to  have  a  measure  submitted  than 


IN  OREGON 

is  now  provided  by  law.  Eight  per  cent,  of  the  legal 
voters  are  now  required  to  propose  any  measure  liy 
petition. 

2.  To  have  initiative  measures  lirst  submitted  to 
the  legislature  with  the  right  to  pass  upon  them  or  to 
amend  them,  and  if  amended  to  submit  the  alternative 
proposition  to  the  people.  Such  an  amendment  has 
been  prepared  by  friends  of  the  initiative  and  is  now 
under  public  consideration. 

3.  To  limit  the  number  of  constitutional  amend- 
ments or  laws  that  may  be  submitted  to  vote  at  any 
one  election. 

4.  To  limit  the  subject  matter  to  a  single  proposi- 
tion in  concrete  form. 

5.  It  has  also  been  suggested  that  the  initiative 
be  confined  to  bills  that  have  been  introduced  and 
failed  to  pass  in  the  legislature  and  those  that  have 
been  vetoed  by  the  governor. 

Except  number  2,  so  far  as  I  am  aware,  none  of 
the  other  suggested  amendments  has  been  reduced  to 
writing  or  prepared  for  public  discussion. 

The  referendum  is  felt  to  be  of  great  value  in  oper- 
ating as  preventive  of  special,  extravagant  or  other- 
wise obnoxious  legislation.  This  power  operates  as  a 
strong  deterrent  against  extravagant  legislation  or 
that  favorable  to  special  interests.  The  indiscriminate 
granting  of  franchises,  the  bartering  away  of  public 
rights  and  the  granting  of  special  privileges  of  all 
kinds  which  have  been  so  prolific  of  corruption  in  the 
past,  would  not  have  been  indulged  in  to  the  extent 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

they  have,  had  the  people  always  reserved  this  power. 
There  is  but  little  criticism  of  the  referendum.  About 
the  only  change  suggested  is  to  provide  for  a  larger 
number  of  petitioners. 

It  could  hardly  be  said  that  the  people  have  not 
voted  intelligently  upon  measures  that  have  been  sub- 
mitted for  their  consideration.  Moreover,  nearly  all 
the  laws  passed  by  the  people,  though  possibly  differ- 
ing in  language  or  construction,  have  been  rejected  by 
the  legislature.  The  following  list  is  illustrative  of 
measures  submitted  and  votes  cast  thereon : 

19o6  Yes  No 

Equal  suffrage 36,928         46,97 1 

To  amend  local  option  law 35.397         45.144 

To  purchase  a  private  toll  road 31,525         44,525 

For  initiative  and  referendum  on  local,  special  and 

municipal  laws 47,778         16,735 

Prohibiting  free  passes  (no  enacting  clause) 57,281         16,779 

Requiring  sleeping  car,  refrigerator  car,  and  oil 
companies  to  pay  annual  license  upon  gross 

earnings 69,635  6,440 

Requiring  express,  telegraph  and  telephone  com- 
panies to  pay  annual  license  upon  gross 
earnings 70,872  6,360 

It  will  be  noted  that  the  act  prohibiting  free  passes 
had  no  enacting  clause  and  in  consequence  failed  to 
become  a  law.  The  act  to  regulate  transportation  and 
commerce,  etc.,  was  passed  at  the  legislative  session 
of  1907.  Certain  provisions  of  this  act,  in  effect,  pro- 
hibited the  giving  of  free  transportation. 

Notwithstanding  the  vote  of  the  people  but  recently 
cast  upon  the  question,  the  legislature  at  the  same  ses- 
sion passed  an  act  requiring  the  railroads  to  grant  free 

224 


IN  OREGON 

transportation  to  state  and  county  officials  as  a  consid- 
eration precedent  to  acquiring  land  for  corporate  pur- 
poses by  the  exercise  of  eminent  domain.  A  referen- 
dum was  called  upon  this  act,  and  at  the  election  of 
1908  the  law  was  defeated  by  a  vote  of  59,406  to 
28,856.  This  exemplifies  the  use  to  which  the  referen- 
dum may  be  put  and  is  an  excellent  illustration  why  it 
is  extremely  unlikely  that  it  will  be  repealed. 

A  referendum  was  also  called  on  an  appropriation 
made  for  the  state  university.  The  appropriation  was 
sustained  by  a  vote  of  44.115  to  40,535.  This  refer- 
endum is  occasionally  referred  to  as  an  illustration  of 
its  dangers.  Personally,  I  do  not  view  it  in  that  way, 
as  I  think  the  discussion  that  followed,  and  the  better 
understanding  the  people  in  the  end  had  of  the  subject, 
did  good  rather  than  harm.  I  might  add  that  the  large 
negative  vote  does  not  really  represent  the  feelings  of 
our  people  toward  the  state  university.  A  number  ot 
local  conditions  and  issues  swelled  this  vote,  and  I 
think  I  am  safe  in  saying  that  the  people  of  the  state 
generally  take  a  justifiable  pride  in  this  institution, 
which,  I  am  glad  to  say,  is  growing  in  strength  and 
influence  all  the  lime. 

Among  the  measures  submitted  in  1908,  and  de- 
feated, were  the  following : 

Increasing  the  compensation  of  members  of  the 
legislature  to  $400  for  a  regular  session,  and  ten  dol- 
lars per  day  for  each  extra  session,  instead  of  three 
dollars  per  day  and  mileage ; 

An  amendment  increasing  tlic  number  of  judges  of 

225 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

the  sui^reme  court,  and  changing  the  jurisdiction  of 
certain  other  courts ; 

An  act  appropriating  $25,000  annually  for  four 
years  for  purchasing  grounds  and  building  armories 
for  the  use  of  the  Oregon  National  Guard; 

Equal  suffrage  amendment ; 

Giving  cities  and  towns  within  their  corporate 
limits  additional  and  exclusive  power  to  license  and 
control  or  prohibit  theatres,  race  tracks,  and  the  sale 
of  liquor,  etc.  This  proposal  was  considered  to  be 
something  in  the  nature  of  a  trick  to  avoid  the  effect  of 
the  local  option  law,  and  received  39,442  affirmative 
and  52,346  negative  votes; 

The  single  tax  amendment  was  defeated  by  a  vote 
of  60,871  to  32,066. 

The  following  measures  were  carried : 

Permitting  the  location  of  state  institutions,  else- 
where than  at  the  seat  of  government,  by  act  of  legis- 
lature and  vote  of  the  people; 

Changing  the  time  of  holding  the  regular  general 
biennial  election  from  the  first  Monday  in  June  to  the 
Tuesday  after  the  first  Monday  in  November. 

Two  laws  prohibiting  fishing  for  salmon,  etc.,  were 
both  passed;  one  was  known  as  the  "  Up  River  Bill," 
the  other  as  the  "  Down  River  Bill."  The  effect  of 
the  passage  of  both  laws  was  to  prohibit  the  taking  of 
salmon  at  all,  although  such  was  not  the  intention  of 
the  proposers.  Each  only  wanted  to  restrain  its  rival. 
While  on  its  face  it  would  indicate  that  the  vote  cast 
is  evidence  of  the  confusion  that  may  result  from  the 

226 


IN  OREGON 

use  of  the  initiati\e.  yet.  if  the  subject  were  understood 
as  we  understand  it  here,  the  resuh  is  not  surprising. 
Moreover,  it  is  not  uncommon  to  find  contradictory 
laws  as  well  as  acts  having  irreconcilable  provisions 
passed  by  the  legislature. 

In  the  report  of  the  Oregon  Conservation  Commis- 
sion of  1908,  the  committee  who  prepared  the  paper 
on  the  salmon  industry  in  connection  with  tliis  vote, 
said : 

"  There  is  some  antagonism  among  the  operators 
of  any  kind  of  gear  against  any  other.  Between  the 
gill-netters  of  the  lower  and  the  wheelmen  of  the  upper 
river,  this  rises  to  open  hostility.  Opposing  delega- 
tions have  met  before  the  legislature  for  many  years 
and  each  party  has  succeeded  in  blocking  legislation 
proposed  by  the  others.  At  last  election  ( in  June. 
1908),  each  party  had  its  hill,  proposed  under  the 
initiative,  each  legislating  the  other's  method  of  de- 
struction and  preserving  its  own.  The  electors,  in  an 
excess  of  disgust,  tinged  witli  sardonic  humor,  passed 
both  bills  by  different  but  decisive  majorities.  The 
laws  thus  passed,  taken  together,  practically  prohibit 
fishing  by  either  method  so  far  as  the  legislation  of  this 
state  alone  was  competent  to  do  so." 

The  recall  was  adopted  by  a  decisive  majority. 

A  law  instructing  the  members  of  the  legislature  to 
vote  for  and  elect  the  candidate  for  United  States  sen- 
ator who  receives  the  highest  number  of  votes  at  the 
general  election,  was  adopted  at  the  ])nlls  by  a  vote  of 

69,668  to  21,162. 

227 


THE   INITIATIVE,   REFERENDUM   AND   RECALL 

An  act  authorizing  the  legislature  to  provide  for 
proportionate  representation  passed  by  a  large  vote. 

The  "  Corrupt  Practices  "  act  also  passed  by  a 
heavy  majority.  This  act  is  very  long,  and,  v^hile  its 
object  is  good,  it  is  exceedingly  complicated,  and  it  is 
doubtful  if  some  of  its  provisions  can  or  should  be 
enforced.  There  is  no  question,  however,  but  that  its 
operation  was  noticeable  at  elections  following  its 
adoption,  and  it  certainly  had  a  marked  effect  for  the 
better. 

A  constitutional  amendment  was  also  passed  pro- 
viding tliat  no  person  can  be  charged  in  the  circuit 
court  with  a  commission  of  a  crime  or  misdemeanor 
except  upon  indictment  found  by  a  grand  jury.  Prior 
to  the  passage  of  this  act,  the  district  attorney  could, 
upon  his  own  investigation,  file  an  information  which 
in  effect  was  an  indictment. 

An  analysis  of  the  measures  submitted  and  the  vote 
of  the  people  thereon  would  indicate  that  there  is  noth- 
ing in  the  vote  on  these  measures  which  would  justify 
condemnation  of  the  law  or  fear  of  its  consequences. 

At  the  city  election  held  in  June  this  year  there 
were  thirty-five  measures  submitted  to  the  people.  As 
the  number  of  measures  submitted  at  this  election  is 
often  used  as  a  "  horrible  example  "  of  what  the  initia- 
tive and  referendum  may  lead  to,  simple  justice  de- 
mands that  the  facts  be  stated.  There  were  thirty-five 
questions  submitted.  Of  these  twenty-five  were  pro- 
posed amendments  to  the  charter,  which  can  be 
changed  only  by  a  vote  of  the  people.     Of  these  three 

228 


IN  OREGON 

were  submitted  by  a  charter  board  appointed  for  the 
purpose  of  submitting  a  new  charter  or  amendments 
to  the  existing  charter ;  twenty-two  were  submitted  by 
the  council  direct,  or  upon  the  advice  of  a  committee 
of  seven  citizens  appointed  to  propose  changes ;  and 
none  by  petition  through  the  initiative. 

Nine  ordinances  were  submitted.  Of  these  two 
were  submitted  by  the  council  and  seven  by  the  initia- 
tive petition.  One  referendum  was  called  against  an 
ordinance  passed  by  the  council.  It  will  thus  be  seen 
that  the  people,  through  the  initiative  and  referendum, 
were  directly  responsible  for  eight  of  the  measures 
submitted.  However,  it  is  but  fair  to  say  that  a  num- 
ber of  the  others  should  have,  and  probably  would 
have,  been  submitted  had  not  the  council  acted. 

Many  of  the  charter  amendments  were  of  slight 
importance,  but  as  before  stated,  as  the  charter  can 
only  be  changed  by  a  vote  of  the  people,  they  had- to  be 
submitted.  Others  were  of  great  importance.  A  com- 
mission form  of  government  was  defeated  by  a  vote 
of  10,770  to  4,903.  A  nuinicipal  electric  light  plant 
was  proposed.  It  was  defeated  by  9,684  to  6,039. 
Proposed  ordinances  granting  to  a  Gothenburg  Asso- 
ciation the  exclusive  right  to  sell  spirituous  liquors  in 
the  city  of  Portland  and  a  rather  stringent  excise  or- 
dinance were  both  badly  defeated.  An  amendment 
requiring  franchise  holders  to  keep  accessible  accounts 
and  report  to  the  city  auditor  carried  by  a  vote  of 
10,302  in  its  favor  and  4,444  against  it.  Twenty-seven 
of  its  recommendations  were  adopted,  and  eight  were 

229 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

not.     Of  the  eight,  two  at  least  were  of  no  particular 
importance. 

In  my  opinion,  a  proposition  in  this  state  to  repeal 
the  initiative  and  referendum,  notwithstanding  certain 
defects  and  disadvantages,  would  meet  with  defeat. 
In  the  future  defects  may  develop  that  will  provoke  a 
repeal,  but  this  I  doubt.  On  the  contrary,  I  think  it 
much  more  probable  that  the  defects  will  be  remedied, 
and  the  axe  will  not  be  laid  at  the  root  of  the  tree.  It 
is  true  that  the  initiative  and  referendum  is  a  radical 
departure  from  our  former  practices  and  imposes  a 
grave  responsibility  upon  the  people.  Thus  far,  on 
the  whole,  they  have  fully  met  this  burden,  and  in  my 
opinion  it  has  worked  for  good ;  and  nothing  is  of 
more  importance  in  a  government  such  as  ours  than  to 
place  responsibility  directly  upon  the  people.  It  is  my 
belief  that  they  can  be  trusted  to  act  upon  measures 
that  may  be  submitted  to  them,  and  that  as  a  whole 
they  will  act  fairly  and  justly  if  they  understand  them. 
They  may  be  deceived,  but  I  do  not  believe  any  con- 
siderable number  of  people  will  knowingly  be  unjust 
or  unfair,  or  act  otherwise  than  as  they  believe  to 
be  to  the  interest  of  the  community. 

I  do  not  desire  to  make  any  comparisons  between 
laws  passed  by  the  legislature  and  those  passed  by  the 
people  direct,  but  the  comparison,  if  made,  would  not 
be  unfavorable  to  those  passed  through  the  initiative. 
While  I  favor  and  still  favor  the  initiative  and  refer- 
endum, I  am  not  a  partisan  or  special  pleader  for  it, 
and  if  I  believed  or  was  convinced  that  it  worked  for 

230 


IN  OREGON 

harm  rather  than  for  good,  I  would  say  so,  and  urge 
its  repeal.  At  times  measures  are  suggested  and  action 
taken  thereon  that  create  some  doubt  as  to  the  wisdom 
of  the  procedure,  but  when  one  thinks  of  what  went 
on  under  the  old  system,  and  how  indififerent  and 
worse  than  indifferent  legislatures  have  been  and  are 
both  as  to  the  rights  and  demands  of  the  people,  one 
feels  that  a  mistake  now  and  then  does  not  justify  a 
wholesale  condemnation  of  the  new  system.  It  is 
urged  that  the  people  without  this  law  have  the  power 
to  elect  only  honest  and  qualified  men  to  office,  and 
therefore  there  is  no  occasion  to  inaugurate  what  ap- 
pears to  some  people  to  be  a  revolutionary  programme. 
This  may  be  true,  but  to  have  a  concurrent  remedy 
can  do  no  harm.  Let  the  people  elect  honest  men,  let 
them  also  retain  the  pcnver  reserved  in  the  initiative 
and  referendum.  Its  benefits  will  then  be  not  in  its 
use,  but  rather  in  its  potentiality. 

I  have  been  asked  to  discuss  the  effectiveness  of  the 
initiative  and  referendum  as  instruments  for  securing 
a  democratic  government ;  but  I  am  sure  that  any 
academic  discussion  of  this  question  would  be  unprofit- 
able. There  are  two  lines  of  thought :  one  holding 
tliat  it  is  destructive  of.  the  other  that  it  is  an  aid  of  a 
democratic  f(jrm  of  government.  It  is  asserted  that 
under  it  a  state  does  not  enjoy  the  cbaracter  of  govern- 
ment guaranteed  by  the  constitution  of  the  United 
States,  and  a  case  involving  this  point  is  now  pending 
in  the  supreme  court  of  the  United  States  on  ap])eal 
fr(jm  the  supreme  court  of  Oregon.      However,  tlins 

231 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

far  the  courts  have  held,  including  the  supreme  court 
of  this  state,  that  the  initiative  and  referendum  as 
adopted  in  this  state  are  not  contrary  to  the  provisions 
of  the  constitution- of  the  United  States  guaranteeing 
a  republican  form  of  government. 

It  is  also  asserted  that  the  only  method  by  which 
our  character  of  government  can  be  maintained  is 
through  representatives  chosen  by  the  people.  Very 
earnest  and  able  men  support  both  views,  but  speaking 
from  our  experience  thus  far,  it  is  my  opinion  that  the 
initiative  and  referendum  tend  to  secure  more  demo- 
cratic government,  if  by  that  term  is  meant  government 
by  the  people  and  for  the  people,  than  does  the  purely 
representative  form.  A  number  of  laws  and  amend- 
ments to  the  constitution  have  been  approved  by  the 
people  when  proposed  by  initiative  petition  after  the 
same  measures  had  been  rejected  by  the  legislature, 
and  are  some  evidence  of  the  truth  of  this  statement. 


CHAPTER  X 

A    YEAR    OF    THE    PEOPLE's    RULE    IN    OREGON    (iQIo)^ 

The  past  year  has  been  one  of  great  political  ac- 
tivity in  Oregon.  Observers  at  a  distance  may  have 
entertained  the  notion  that,  with  the  securing  of  the 
initiative,  the  referendum  and  the  recall,  not  to  speak 
of  the  direct  primary  and  a  genuinely  popular  election 
of  senators,  all  pressing  problems  had  been  solved, 
and  that  these  devices  of  the  new  institutional  democ- 
racy would  now  be  subjected  to  years  of  quiet  testing. 
Little  did  they  understand  the  spirit  of  the  Oregon 
leaders.  The  men  who  had  championed  direct  legisla- 
tion and  kindred  institutions  in  that  state  were  by  no 
means  disposed  to  rest  content.  The  triumphs  they 
had  secured  had  come  singly,  in  laws  neither  entirely 
consistent  with  each  other  nor  with  other  parts  of  the 
governmental  machinery  as  yet  untouched.  Accord- 
ingly, fifteen  months  in  advance  of  the  general  election 
of  19 lo,  they  set  about  devising  a  system  whereby  the 
conduct  of  state  and  county  government  might  "  be 
made  as  efficient  and  economical  as  the  management 

>By  Professor  George  H.   Haynes.     Reprinted   irom    Political 
Science  Quarterly,  Vol.  XX\'I,  No.  i. 

16  ^:i:i 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

by  citizens  of  their  private  business."  Such  was  the 
ambitious  aspiration  which  prefaced  a  series  of  pro- 
posals, printed  in  an  edition  of  7,500  copies  and  dis- 
tributed in  midsummer,  1909,  accompanied  by  a  letter 
of  explanation  signed  by  eighteen  men  whose  names 
are  familiar  as  sponsors  of  the  direct  legislation  meas- 
ures of  the  past  decade.  These  documents  were  sent 
to  thousands  of  representative  voters  of  Oregon  and 
also  to  interested  correspondents  in  other  and  distant 
states,  for  the  purpose  of  obtaining  opinions  regarding 
the  wisdom  of  the  scheme.  The  proposals  thus  cir- 
culated were :  to  submit,  by  initiative  petition,  at  the 
election  in  November,  191  o,  a  bill  for  the  publication 
of  an  "  Official  Gazette,"  and  four  constitutional 
amendments,  the  first  of  which  aimed  to  systematize 
the  exercise  of  the  legislative  power  within  the  state ; 
the  second,  to  centralize  administrative  responsibility 
on  the  models  of  the  business  corporation  and  of  the 
federal  executive ;  the  third,  to  secure  a  similar  centrali- 
zation of  responsibility  in  county  government ;  and 
the  fourth,  to  secure  certain  reforms  in  the  state  judi- 
ciary. Throughout  them  all,  the  avowed  purpose  was 
to  "  maintain  the  people's  direct  and  supreme  power, 
by  the  initiative,  referendum  and  recall,  to  make  laws 
and  discharge  the  public  officers  as  well  as  elect  them  "  ; 
and  the  intention  was  announced  of  forming  a  "  Peo- 
ple's Progressive  Government  League  "  of  four  or  five 
hundred  citizens,  to  present  such  measures  as  might  be 
agreed  upon. 

In  January,   19 10,  under  the  same  auspices,  a  sec- 

234 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

oncl  pamphlet  was  issued,  in  which  the  proposals  be- 
fore advanced  were  restated  and  modified  in  accordance 
with  the  criticisms  and  suggestions  which  they  had 
elicited.  Some  clauses  were  cut  out;  some  new  fea- 
tures were  stressed;  and  much  space  was  devoted  to 
argument  upholding  the  theory  and  practice  of  "  peo- 
ple's rule."  Some  months  later  there  were  circulated, 
for  signatures,  four  initiative  petitions,  in  the  elaborate 
form  prescribed  by  law,  prepared  by  the  "  People's 
Power  League."  The  two  most  radical  projects — 
those  designed  to  centralize  administration  in  the  state 
and  in  the  county — were  omitted,  for  signs  of  reac- 
tionary revolt  were  multiplying,  and  it  was  deemed 
wise  to  concentrate  the  campaign. 

The  first  place  was  given  to  a  bill  tf>  extend  the 
Direct  Primary  Nominating  Elections  Law  so  as  to 
include  presidential  campaigns  and  nominations.'  This 
measure  provided  that  in  the  year  of  a  presidential 
campaign,  on  the  forty-fifth  day  before  the  first  Mon- 
day in  June,  there  should  be  held  the  Oregon  primary 
nominating  election,  at  which  every  voter  should  have 
the  opportunity  to  "  vote  his  preference  .  .  .  for 
his  choice  for  one  person  to  be  the  candidate  of  his 
political  party  for  president,  and  one  person  to  be  the 
candidate  of  his  political  party  for  vice-president  of 
the  United  States,"  either  by  writing  the  names  of 
such  persons  in  blank  spaces  or  by  making  a  cross 
before  the  printed  names  of  the  persons  of  his  choice. 

>  Adopted  by  the  people,  infra,  p.  272. 
235 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

At  this  election  votes  might  be  cast  also  for  delegates 
to  the  national  nominating  convention  and  for  presi- 
dential electors,  by  a  method  intended  to  secure  pro- 
portional representation.  The  expenses  of  the  men 
thus  selected  as  delegates  to  the  national  conventions 
were  to  be  paid  from  the  state  treasury,  up  to  the  limit 
of  $200  for  each  delegate.  The  proposed  law  accorded 
to  each  person  regularly  nominated  for  president  or 
vice-president  of  the  United  States  by  a  political  party 
recognized  as  such  by  the  laws  of  Oregon,  the  use, 
gratis,  of  four  pages  in  the  state  campaign  book, 
wherein  he,  or  his  duly  accredited  representatives  or 
supporters,  might  set  forth  the  reasons  why  he  should 
be  elected.  Equal  spaces  were  made  available  to  per- 
sons nominated  to  be  delegates  to  a  national  conven- 
tion or  presidential  electors,  and  to  any  qualified  elector 
of  a  political  party  who  might  favor  or  oppose  the 
nomination  of  any  person  of  his  own  political  party  as 
its  candidate  for  president  or  vice-president ;  but  each 
of  these  unprivileged  characters  was  to  pay  at  the  rate 
of  $100  a  page  for  this  "leave  to  print  " — a  regula- 
tion which  might  with  excellent  effect  be  appliefl  to 
post-mortem  issues  of  the  Congressional  Record. 

A  second  constitutional  amendment  put  forward 
by  the  People's  Power  League  proposed  certain 
changes  in  the  state  judiciary.^  It  provided  that  the 
judges  of  all  courts  should  be  elected  for  a  term  of 
six  years;  allowed  the  supreme  court  in  its  discretion  to 

1  Adopted  by  the  people,  itifra,  p.  273. 
236 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

take  original  jurisdiction  in  mandamus,  quo  ivarranto 
and  habeas  corpus  proceedings ;  and  introduced  the 
provision  that  "  in  civil  cases  three-fourths  of  the  jury 
may  render  a  verdict."  It  prohibited  re-trial_oi_any 
case,  "  unless  the  court  can  affirmatively  say^there^s 
no  evidence  to  support  the  verdict."  In  cas£_Q£-^n^ 
appeal,  it  provided  for  affirmance^  of  judgment  nolo 
\vithstaiidm^any^r  rqr^om^^  the_trial,43rQ=:3 

vided  the  supreme  court  was  of  the  opinion  that_.tlie. 
j udgment  was  such  as  shouldjiave  been  rendered ;  and 
i^directed^that,  if  the  supreme  court  should  be  of  the 
opinion  that  it„could  determine  what  judgment  should-., 
have  been  entered  in  the  court  below,  it  should  ente^r 
such  judgment.  As  originally  proposed,  this  measure 
provided  that  "  only  such  opinions  of  the  supreme 
court  shall  be  printed  as  decide  new  questions  of  law, 
or  the  meaning  and  construction  of  the  statutes  and 
the  constitution  of  Oregon  and  of  the  United  States, 
or  that  reverse  former  decisions  of  the  court."  But 
that  provision  was  pruned  down  to  the  following : 
"  At  the  close  of  each  term,  the  judges  shall  file  with 
the  secretary  of  state  concise  written  statements  of  the 
decisions  made  at  that  term."  This  amendment  left 
unchanged  an  unusual  feature  of  the  Oregon  constitu- 
tion :  "  Public  officers  shall  not  be  impeached ;  but  in- 
competency, corruption,  malfeasance  or  delinquency  in 
office  may  be  tried  in  the  same  manner  as  criminal  of- 
fenses, and  judgment  may  be  given  of  (lisniissrd  from 
office  and  such  further  punishment  as  may  have  been 
prescribed  by  law." 

2.37 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

A  project  more  characteristic  of  the  "  people's 
rule  "  movement  was  a  further  measure,  which  was 
proposed  by  initiative  petition,  providing  for  the  es- 
tablishment of  a  board  of  three  "  people's  inspectors 
of  government,"  ^  to  be  elected  for  a  term  of  two  years 
by  a  method  intended  to  secure  proportional  represen- 
tation. These  censors  were  to  devote  their  time  ex- 
clusively to  the  performance  of  their  official  duties. 
They  were  "  to  have  at  least  one  of  their  number  pres- 
ent at  all  times  at  every  session  of  each  house  of  the 
legislative  assembly,  and  to  be  watchful  for  any  defect 
or  imperfection  in  the  state  and  local  systems  of  gov- 
ernment." Upon  demand  of  one  member,  the  board 
was  required  to  investigate  and  report  on  the  man- 
agement of  any  public  office  or  any  institution  sup- 
ported wholly  or  in  part  by  public  funds ;  and  wide 
powers  were  given  to  the  board  in  order  to  enable  it 
to  ascertain  facts  pertinent  to  its  inquiry.  The  re- 
sults of  such  investigation  were  to  be  published  in 
the  Oregon  Official  Ga::cttc,  a  publication  which  was 
to  be  issued  at  least  every  two  months,  and  was  to 
be  mailed  at  public  expense  to  "  every  head  of  a  family 
who  is  a  registered  voter,  and  every  registered  voter 
who  is  not  a  member  of  a  family."  To  others,  the 
subscription  price  was  fixed  at  one  dollar  a  year.  The 
proposed  law  required  the  board  to  publish  in  the 
Gasictte,  without  unnecessary  delay,  not  only  their 
own  reports  but  a  great  variety  of  specified  documents 

«  Rejected  by  the  people,  infra,  p.  271. 
238 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

relative  to  government,  c.  g.  "  all  publications  that 
may  be  required  by  law  to  be  mailed  to  every  regis- 
tered voter."  ^  Every  department  of  the  state  or  of 
any  county  or  municipal  government  therein  was  to  be 
subjected  to  the  scrutiny  of  the  inspectors.  The  pro- 
posed law  insisted  that  such  investigation  and  publica- 
tion should  be  "  solely  for  the  information  of  the  peo- 
ple without  motive  or  desire  for  personal  or  partisan 
advantage,"  and  forbade  the  publishing  of  "  any  mali- 
cious, libelous  or  personally  abusive  communication"; 
it  was,  however,  specifically  required  that  they  should 
publish  "  any  criticisms  or  complaints,  not  exceeding 
two  hundred  words  each,  of  their  own  ofiicial  acts." 
The  law  provided  that  these  inspectors  should  be 
elected  biennially,  beginning  in  191 2.  For  service  be- 
fore that  date,  a  temporary  board  was  to  be  appointed 
by  the  governor.  He  was  to  call  for  three  recom- 
mendations of  nominees  from  each  of  the  following 
bodies :  the  executive  committee  of  the  State  Grange, 
the  executive  committee  of  the  Oregon  State  Federa- 
tion of  Labor  and  an  assembly  of  the  presidents  of  the 
boards  of  trade  and  commercial  organizations  of  the 
state ;  and  he  was  to  name  as  a  member  of  this  tempo- 
rary board  one  of  the  three  nominees  submitted  by 
each  of  these  bodies.  If  the  framers  of  the  bill  put 
this  forward  as  a  model  for  future  boards,  it  is  of  in- 

» If  the  Oregon  Campaign  Book  could  thus  Vje  brought  out  as  an 
issue  of  an  official  gazette,  it  would  be  entitled  to  second  class  postal 
rates.  On  the  last  issue,  that  would  have  involved  a  saving  to  the 
state  treasury  of  about  $2,500. 

239 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

terest  to  note  the  proportionate  influence  here  allotted 
to  different  elements  in  the  population  in  the  forming 
and  executing  of  public  opinion. 

By  some  accident  no  specific  salary  for  the  inspec- 
tors was  mentioned,  although  it  was  expressly  declared 
that  the  board  "  shall  not  apply  to  the  legislative  as- 
sembly for  any  appropriation.  It  is  intended  that  these 
inspectors  shall  be  independent  of  all  other  officers  and 
powers,  except  the  people  of  Oregon."  The  sum  of 
not  more  than  $15,000  was  to  be  expended  by  them 
for  expert  accountants  and  other  assistants  in  making 
investigations,  but  the  total  expense  incurred  for  sala- 
ries and  other  charges  of  the  board  and  for  the  pub- 
lication of  the  official  Gazette  was  not  to  exceed  the 
sum  of  one  dollar  for  each  registered  voter  in  Oregon. 
In  the  original  proposal  and  in  the  revised  proposal 
of  January,  1910,  was  a  provision  giving  the  inspec- 
tors a  certain  discretion  in  determining  what  matter 
should  be  admitted  to  the  Ga::citc  free  of  charge,  viz.: 
"  If  any  citizen  or  officer  shall  offer  a  communication 
which  the  board  does  not  consider  of  sufficient  inter- 
est for  publication,  he  may  pay  at  reasonable  column 
rates,  to  be  fixed  by  the  board,  for  the  publication  of 
not  exceeding  three  columns  in  any  issue."  This  pro- 
vision did  not  appear  in  the  measure  finally  submitted, 
in  which  the  inspectors  were  apparently  required  to 
insert  any  communication  which  a  citizen  might  sub- 
mit, unless  they  could  exclude  it  on  the  ground  that  it 
was  "  malicious,  libelous  or  personally  abusive,"  or, 
possibly,  on  the  ground  that,  after  publishing  the  official 

240 


YEAR  OF  PEOPLE'S  RULE  L\  OREGON 

material  mentioned  or  indicated  in  the  law,  they  would 
not  be  able  to  print  the  citizen's  contribution  without 
exceeding  the  limitation  imposed  upon  their  total  ex- 
penditures. 

By  far  the  most  elaborate  and  important,  however, 
of  the  measures  put  forward  by  the  People's  Power 
League  was  one  which  contemplated  a  systematic  re- 
constitution  of  the  legislative  power  and  which  also 
w'as  proposed  by  initiative  petition.^  By  piecemeal  and 
unrelated  acts  of  legislation,  Oregon — followed  by 
quite  a  number  of  other  American  states — has  patched 
the  new  cloth  of  the  initiative  and  referendum  upon 
the  old  garment  of  its  constitution.  Here  at  last  was 
a  project  which,  in  the  opinion  of  its  advocates  (who 
have  been  the  successful  champions  of  direct  legisla- 
tion), would  establish  logical  and  effective  relations 
between  the  law-making  work  of  the  people  at  the  polls 
and  that  of  the  representati\e  legislature. 

At  the  outset,  this  proposed  constitutional  amend- 
ment formulated  the  powers  reserved  by  the  people  to 
themselves,  namely,  the  initiative  and  the  referendum. 
Initiative  measures  should  be  put  before  the  people  on 
demand  of  not  more  than  eight  per  cent,  or,  at  the 
most,  50,000  of  the  legal  voters,  and  should  be  hied 
with  the  secretary  of  state  at  least  four  months  before 
the  election  at  whicli  they  were  to  be  voted  on.  The 
referendum  must  be  applied  to  any  constitutional 
amendment,   and   might  be  ordered  upon  any  act  of 

I  Rejected  by  the  people  injra  p.  272. 
241 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

the  legislature  by  five  per  cent,  or,  at  the  most,  by 
not  more  than  30,000  of  the  legal  voters.  It  might  be 
applied  to  individual  items  of  acts  of  the  legislature; 
and  any  increase  in  appropriations  for  the  maintenance 
of  the  state  government  or  of  the  institutions  sup- 
ported by  state  funds  was  to  be  subject  thereto.  In 
order  that  the  referendum  might  have  full  scope,  it  was 
provided  that,  except  in  cases  of  emergency,  no  act  of 
the  legislature  should  take  effect  until  ninety  days  from 
the  end  of  the  session  at  which  it  was  passed.  Inas- 
much, however,  as  three  months'  delay  might  at  times 
prove  disastrous,  it  was  provided  that  any  measure 
(except  one  creating  or  abolishing  some  office  or 
changing  the  salary,  term  or  duties  of  some  officer) 
should  go  into  effect  immediately  upon  its  passage, 
provided  three-fourths  of  all  the  members  elected  to 
each  house  "  shall  vote,  on  a  separate  roll-call,  in  favor 
of  the  measure  going  into  instant  operation  because 
it  is  necessary  for  the  immediate  preservation  of  the 
public  peace,  health  and  safety."  Even  such  a  measure 
might  be  annulled  by  a  subsequent  referendum,  but  it 
was  to  remain  in  force  until  the  adverse  vote  should 
be  declared.  It  was  further  provided  that  no  measure 
approved  by  vote  of  the  people  could  be  repealed  or 
amended  by  the  legislative  assembly,  except  by  three- 
fourths  vote  of  all  the  members  elected  thereto.  Pro- 
vision was  also  made  for  the  use  of  the  initiative  and 
referendum  under  similar  conditions  in  municipal  af- 
fairs. 

The  make-up  and  powers  of  the  representative  leg- 

243 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

islature  were  next  set  forth.  The  numbers  were  to 
remain  unchanged :  thirty  members  of  the  senate  and 
sixty  of  the  house.  These  were  to  he  chosen  from 
such  districts,  composed  of  contiguous  territory,  as 
should  be  provided  by  law ;  but  residence  within  the 
district  was  not  required.  On  the  one  hand,  the  mem- 
ber's position  was  suljstantially  strengthened  by  in- 
creasing the  term  of  senators  from  four  to  six  years 
and  that  of  representatives  from  two  to  six  years ;  but 
this  was  offset  by  the  recall,  which,  on  demand  of 
twenty-five  per  cent,  of  the  voters,  might  be  in\'oked 
not  only  against  an  individual  member  but  against  the 
senate  or  the  house  or  the  entire  legislative  assembly. 
Recall  petitions  must  state  in  not  more  than  two  hun- 
dred words  the  reasons  for  such  action.  The  filing  of 
a  recall  petition  requiring  a  general  election — in  other 
words,  the  formal  initiation  of  a  measure  to  "  turn 
all  the  rascals  out  " — was  to  operate  as  "  a  comi)lete 
suspension  of  all  the  power  granted  by  the  people  of 
Oregon  to  the  legislative  assembly,"  until  the  returns 
should  be  determined. 

The  members  of  both  houses  of  the  legislature 
were  to  be  elected  by  a  novel  system  of  proportional 
representation,  the  intent  being  that  any  one-sixtieth 
of  all  the  voters  of  the  state,  voting  for  one  person 
for  representative,  sluuild  elect  him  and  that  any  one- 
thirtieth  should  be  enabled  to  elect  their  candidate  for 
the  senate.  The  nomination  was  to  be  by  districts, 
but  the  election  by  the  voters  of  the  state  at  large. 
Each  candidate's  name,  whether  for  the  senate  or  for 

243 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

the  house,  was  to  be  printed  on  the  ballot  only  in 
the  district  in  which  he  should  be  nominated ;  but  any 
legal  voter  in  any  other  district  might  vote  for  him 
by  writing  his  name  upon  the  ballot  or  by  using  a 
sticker.  Each  voter,  however,  was  to  vote  for  only 
one  candidate  for  senator  and  one  for  representative. 
No  candidate  for  nomination  was  to  be  permitted  to 
circulate  his  petition  or  pay  for  its  circulation  outside 
of  the  nominating  district  in  which  he  resided.  At 
the  general  election,  each  candidate  for  the  legislature 
was  to  be  entitled  to  have  printed  on  the  official  ballot 
against  his  name  his  "  platformette  " — a  statement  in 
not  more  than  twelve  words  of  his  political  faith  or  of 
his  pledges  to  the  people. 

In  counting  the  vote,  the  total  number  of  votes 
cast  for  senators  was  to  be  divided  by  thirty  and  that 
cast  for  representatives  by  sixty,  the  resultant  numbers 
fixing  the  "  cjuota  of  election  "  for  each.  Then  the 
whole  number  of  votes  received  by  all  the  candidates 
of  each  party  was  to  be  divided  by  this  quota  of  elec- 
tion ;  the  quotient  for  each  party  was  to  indicate  the 
number  of  representatives'  (or  senators')  seats  to 
which  that  party  was  to  be  entitled ;  and  that  number 
of  party  candidates  who  should  have  received,  each 
for  himself,  the  full  quota  or  nearest  to  the  full  quota 
of  votes  should  be  thereby  elected.  Any  independent 
candidate  who  should  receive  for  himself  a  quota  of 
votes,  or  a  number  greater  than  the  highest  remainder 
of  any  party,  should  be  thereby  elected. 

It  is  evident  that  the  Swiss  free-list  system  had  re- 

244 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

ceived  careful  study.  It  was  assumed  tliat  in  most 
districts  candidates  of  the  more  prominent  parties 
would  he  put  forward,  hut  that  a  single-taxer  or 
socialist,  if  of  strongly  marked  personality  or  power 
of  leadership,  might  so  enlist  the  loyalty  of  supporters 
all  over  the  state  that  they  would  suhstitute  his  name 
for  those  of  the  candidates  nominated  in  their  own  dis- 
tricts. In  making  state-wide  the  constituency  from 
which  representatives  were  to  be  chosen,  proportional 
representation  would  have  been  subjected  to  a  severe 
strain.  In  the  writer's  opinion,  the  chances  of  its  sat- 
isfactory working  would  be  greatly  increased  if  it 
were  applied  to  districts  electing  not  more  than  from 
five  to  ten  members. 

Vacancies,  except  those  created  by  the  recall,  were 
to  be  filled  by  "  seating  the  qualified  candidate  from 
the  same  party  as  that  of  the  retiring  ofiicer  who  re- 
ceived for  himself  nearer  to  the  quota  of  votes  than 
any  other  candidate  of  his  party  who  was  not  elected." 
This  procedure  is  open  to  obvious  and  serious  objec- 
tion, particularly  in  \-iew  of  the  proposed  term  of  six 
years — a  term  longer  than  that  accorded  to  a  legislator 
in  any  other  American  state.  Party  complexion  may 
undergo  great  changes  in  such  a  period.  There  is  lit- 
tle assurance  that  a  Democrat  who  narrowly  escaped 
election  in  1892  would,  by  virtue  of  that  fact,  have 
been  an  acceptable  Democratic  representative  in  1897. 
Republicans  of  the  vintage  of  1897  or  of  1907  might 
need  to  be  re-certified  in  1900  or  in  19 10.  Another 
defect  lay  upon  the  surface:  district  nomination  was 

245 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

required  although  district  residence  was  not.  Doubt- 
less, in  nine  cases  out  of  ten,  the  representative  would 
be  a  resident  of  his  own  district.  But  in  case  such  a 
representative  should  die  or  resign  during  the  course 
ui  his  six  years'  term,  his  place  would  be  filled  auto- 
matically by  the  man  of  his  party  name  who,  possibly 
five  years  earlier  and  necessarily  in  another  district, 
happened  to  have  escaped  election  by  the  narrowest 
margin.  In  short,  both  this  form  of  proportional  rep- 
resentation and  this  method  of  filling  vacancies  are  at 
fault  in  over-emphasizing  party  lines.  In  state  rela- 
tions national  party  lines  have  only  a  secondary  and 
minor  justification;  and  yet,  under  this  plan,  the  party 
label  was  to  determine  who  should  fill  a  vacancy  long 
years  after  the  label's  significance  might  have  been 
utterly  lost. 

No  distinction  was  made  in  the  qualifications  for 
membership  in  the  two  houses;  the  candidate  must  be 
a  citizen  of  the  United  States,  at  least  twenty-one 
years  of  age,  and  a  resident  of  the  state  for  at  least 
five  years  before  his  election.  It  was  proposed,  how- 
ever, to  make  a  substantial  increase  in  the  compensa- 
tion of  the  legislators.  Under  the  present  law  it  is 
not  more  than  three  dollars  a  day,  with  the  further 
stipulation  that  the  entire  per  diem  allowance  shall  not 
exceed  $120  in  any  one  regular  biennial  session.  Under 
the  proposed  measure  each  member  was  to  receive 
an  annual  salary  of  $350,  together  with  a  mileage  al- 
lowance. Each  house  was  to  choose  its  own  officers 
and  standing  committees;  but  the  presiding  officers, 

246 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

though  elected  by  their  respecti\e  houses.  "  shall  not 
be  members  of  the  legislative  assembly,  nor  hold  any 
other  office  at  the  same  time.  They  shall  not  appoint 
committees,  and  shall  ha^'e  no  voice  or  vote  on  legis- 
lative business."  Evidently  "  Cannonism  "  was  not  ap- 
proved by  the  framers  of  this  project.  Two-thirds  of 
each  house  was  the  exceptionally  large  quorum  re- 
quired to  do  business;  in  case  either  house  should  fail 
to  effect  an  organization  within  five  days  after  such 
quorum  should  be  in  attendance,  its  members  were  to 
receive  no  compensation  from  the  end  of  the  said  five 
days  until  an  organization  should  have  been  efifected. 
This,  however,  would  not  prevent  the  recurrence  of 
the  experience  of  1897,  when  throughout  the  time  ap- 
pointed for  the  session  the  legislature  failed  to  effect 
an  organization  because  the  requisite  cporum  never 
appeared. 

A  majority  of  all  the  members  elected  to  each 
house  was  to  be  necessary  to  pass  any  l)ill.  The  yeas 
and  nays  must  be  entered  at  the  request  of  any  two 
members  on  any  question  except  a  motion  to  adjourn 
— on  which  the  demand  must  be  supported  by  one- 
tenth  of  those  present.  Strangely  out  of  date  and 
empty  of  significance  in  this  radical  measure  sounds 
the  familiar  restriction  that  bills  for  raising  revenue 
should  originate  in  the  lower  house.  There  was  a 
formidable  list  of  acts  excluded  from  the  competence 
of  the  legislative  assembly,  with  no  less  than  sixteen 
items,  including  the  enactment  of  "  any  local  or  general 
law  extending  or  granting  the  power  of  eminent  do- 

247 


THE   INITIATIVE.    REFERENDUM    AND    RECALL 

main  to  private  corporations."    Painstaking  effort  was 
put  forth  to  devise  checks  for  the  abuses  most  prev- 
alent   in    legislative    assemblies.     To    prevent    undue 
haste,  it  w^as  provided  that  bills  introduced  after  the 
twentieth  day.  of  any  session  should  not  be  passed  at 
that  session,  unless  as  emergency  measures;  and  that 
none  but  an  emergency  measure  should  be  passed  until 
it   had  been   printed   and   in  the   possession   of   each 
house,  in  its  final  form,  for  at  least  five  days.    Nor  was 
any  measure  to  be  altered  or  amended  on  its  passage 
through  either  house  so  as  to  change  its  original  pur- 
pose.     Issue-dodging  and  the  shirking  of  legislative 
duties  were  to  be  discouraged  by  the  deduction  of  ten 
dollars  from  the  salary  of  a  member  for  each  failure 
to  vote  on  a  roll-call,  unless  such  member  were  excused 
by  a  yea  and  nay  vote  of  a  majority  of  all  the  mem- 
bers of  his  house.^     An  attempt  was  made  to  combat 
the  evils  of  secrecy  by  the  requirement  that  the  doors 
of  each  house  and  of  all  committees  should  be  kept 
open,  "  except  only  in  such  cases  as  in  the  opinion  of 
either  house  require  secrecy,  but  in  every  such  case 
the  yeas  and  nays  shall  be  entered  on  the  journal." 
Committees  were  required  to  be  "  liberal  in  allowing 
public  hearings  on  measures;  the  chairman  of  every 
committee  shall  notify,  in  writing,  all  persons  who  ad- 


» Those  who  have  found  American  patriotism  personified  in  the 
Hon.  William  R.  Hearst  may  be  interested  to  compute  how  such  a 
rule  as  this  would  have  worked  had  it  been  applied  to  his  recent  ser- 
vice in  Congress.  It  was  reported  that  during  the  71  days  of  the 
short  session  of  the  59th  Congress  he  was  recorded  as  absent  69  days. 

248 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

vise  the  committee  of  their  desire  to  be  heard  on  any 
measure  in  its  charge,  of  the  time  of  such  hearing." 

These  Oregon  reformers  apparently  regard  log- 
rolling as  the  most  noxious  of  legislative  distempers, 
and  as  a  specific  against  it  they  devised  the  following 
oath,  to  be  taken  by  every  member: 

"  I  do  further  affirm  and  promise  the  voters  of  the 
state  of  Oregon,  that  during  my  term  of  office,  in  act- 
ing or  voting  as  such  officer  upon  any  measure,  I  will 
always  vote  solely  on  my  judgment  that  the  bill  or  reso- 
lution will  or  will  not  advance  the  general  welfare,  and 
without  reference  to  the  vote,  action  or  caucus  of  mem- 
bers on  that  or  any  other  measure,  and  without  any 
understanding-  (except  my  pubHc  pledges  to  the  people 
or  instructions  from  the  people)  in  any  form  with  any 
member  or  person  that  I  will  aid  or  be  friendly  to  a 
measure  in  which  lie  is  interested  because  he  will  or 
may  l)e  inclined  to  aid  one  in  which  I  am  interested." 

As  a  crowning  safeguard,  it  was  provided  that  seats 
and  desks  should  be  provided  on  the  floor  of  each 
house  for  the  "  people's  inspectors  of  government,"  if 
such  officers  should  be  created  by  law. 

Early  in  the  spring  of  1910  it  became  evident  that 
the  election  in  November  would  be  hotly  contested. 
The  cause  of  the  uprising  was  dissatisfaction  with  the 
working  of  the  "  Oregon  system  " — in  particular,  with 
the  fetter  imposed  by  "  statement  No.  i  "  upon  can- 
didates for  the  legislature  in  pledging  them  to  vote 
for  the  people's  choice  for  United  States  senator.  Such 
a  requirement  is  of  course  obnoxious  to  the  machine 
17  249 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

politicians;  but  it  must  be  confessed  that  the  "  Oregon 
system  "  has  shown  that  it  may  yield  anomalous  re- 
sults, little  calculated  to  give  satisfaction  to  men  of 
quite  a  different  type — men  who  are  firm  believers  in 
party  and  in  party  responsibility.  Under  normal  con- 
ditions, Oregon  is  rated  as  a  Republican  state  by  a  ma- 
jority of  about  25,000.  Yet  at  the  present  time  the 
state  is  represented  in  the  Senate  by  one  man  who  is 
said  to  have  shown  some  fickleness  in  his  party  alle- 
giance and  by  another  who  is  a  Democrat.  It  is  no 
aspersion  upon  Senator  Chamberlain's  character  or 
career  to  say — what  is  freely  acknowledged — that  his 
endorsement  in  the  general  election  (which  bound 
members  of  the  legislature  who  had  signed  statement 
No.  I )  was  made  possible  only  because  the  Republican 
party  in  the  state  was  rent  by  faction.  Some  Repub- 
licans voted  for  Chamberlain  because  they  preferred 
him  to  any  leader  of  the  opposing  wing  of  their  own 
party.  Others  frankly  acknowledged  that  they  voted 
for  the  Democrat  in  the  popular  election  with  the  ex- 
pectation that  he  could  be  defeated  in  the  legislature, 
thus  bringing  the  direct  primary  and  "  statement  No. 
I  "  into  such  disrepute  as  to  lead  to  their  repeal.  While 
the  election  was  in  progress  in  the  legislature,  one 
member  after  another  announced  that,  bound  by  state- 
ment No.  I,  he  should  vote  for  Chamberlain,  but  under 
grave  protest  that  injustice  was  being  done  by  a  law 
which  dictated  the  election  of  a  candidate  whose  popu- 
lar endorsement  reflected  with  so  little  clearness  the 
real  will  of  the  people.     The  outcome  was  intolerable 

250 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

to  many  of  the  old-time  leaders  of  the  Republicans; 
and  the  most  influential  newspaper  of  the  state  came 
out  with  the  declaration  :  "  Republicans  of  Oregon  in- 
tend to  repudiate  Statement  No.  i.  They  intend  to 
suggest  in  assembly  or  convention  candidates  for  the 
primary,  and  will  put  the  knife  into  each  and  all  who 
declare  for  Statement  No.  i."  This  movement  made 
such  progress  that  early  in  the  summer  ''  assemblies  " 
convened  in  the  several  counties  and  in  July  a  state 
"  assembly  "'  brought  together  some  eight  hundred 
delegates  "  to  select  and  recommend  "  candidates  for 
Congress  and  for  the  full  list  of  state  offices.  But  as 
a  rose  by  any  other  name  will  smell  as  sweet,  so  the 
"  assembly,"  as  its  opponents  had  confidently  predicted, 
gave  forth  odors  indistinguishable  from  those  which 
had  led  the  Oregon  voters  to  banish  the  "  convention." 
The  Oregonian,  which  had  stood  sponsor  for  the  as- 
sembh^  scheme,  acknowledged  that  in  the  most  impor- 
tant county  in  the  state  the  county  organization  had 
been  "  too  much  in  hands  that  did  not  have  the  gen- 
eral confidence  or  public  respect " ;  and  it  became 
known  that  on  the  eve  of  the  meeting  of  the  assembly 
there  had  been  held  a  secret  conclave,  at  the  office  of 
a  local  corporation,  attended  by  the  representatives  of 
large  financial  and  commercial  interests,  who  had 
looked  over  the  whole  field  and  had  placed  their  stamp 
of  approval  upon  a  full  slate  of  candidates.  With  the 
work  of  the  assembly  thus  discredited  in  advance,  it 
is  not  strange  that  in  the  i)rimary  election  in  Se])tem- 
ber,    despite   the    efforts   of   the    Republican   machine 

2SI 


THE  INITIATIVE,    REFERENDUM   AND    RECALL 

workers  to  put  forward  the  assembly  candidates  as 
those  alone  entitled  to  the  loyal  support  of  the  Repub- 
licans, many  of  these  candidates  met  with  defeat.  The 
Orcgonian  ruefully  attributed  much  of  the  disaster  to 
"  the  more  or  less  unsavory  and  notorious  hangers-on 
of  both  state  and  county  headquarters." 

There  were  other  signs  of  an  impending  reaction. 
In  the  preceding  session  of  the  legislature  there  had 
been  indications  that  the  representatives  of  the  people 
were  not  entirely  acquiescent  in  the  spirit  of  some  re- 
cent "  direct  legislation."  For  example,  the  legislature 
referred  to  the  people  a  bill  providing  that  a  conven- 
tion be  forthwith  elected  for  the  purpose  of  revising 
the  constitution.  The  People's  Power  League  saw  in 
this  proposition  a  grave  menace.  They  insisted  that 
the  initiative  and  referendum  already  provided  ample 
machinery  for  making  whatever  changes  might  be  de- 
sirable in  the  constitution ;  they  professed  fear  that 
the  motive  underlying  this  bill  was  a  purpose  to  "  get 
rid  of  the  initiative,  referendum,  recall,  direct  primary 
and  Statement  No.  i  " ;  and  they  reminded  the  voters 
of  Oregon  of  alarming  precedents — cases  in  which  con- 
ventions had  refused  to  confine  themselves  to  the  tasks 
imposed  upon  them  or  had  promulgated  a  new  consti- 
tution without  referring  it  to  the  people,  even  when 
their  instructions  clearly  prescribed  such  reference. 

The  preceding  legislature  also  aroused  much  criti- 
cism by  referring  to  the  people  a  constitutional  amend- 
ment providing  that  state  senators  and  representatives 
should  be  elected  by  districts  choosing  only  one  mem- 

252 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

ber  each.  The  very  object  of  this  proposal,  it  was 
alleged  by  its  critics,  was  to  make  proportional  repre- 
sentation impossible.  Yet  the  voters  of  Oregon  had 
committed  themselves  to  the  principle  of  proportional 
representation  only  two  years  before  by  a  vote  of 
more  than  three  to  two. 

With  a  vote  on  these  menacing  measures  in  pros- 
pect, and  with  the  assembly  candidates  already  in  the 
field,  Oregon  politics  early  developed  heat.  Tw^o 
months  before  the  November  election  there  appeared 
and  was  mailed  to  every  registered  voter  in  the  state 
the  official  campaign  book — the  Oregon  voter's  political 
primer  or  cram-book  for  the  coming  examination  in 
goxernment.  This  year  it  was  larger  than  ever,  con- 
taining 208  pages.  This  book  shows  the  voter,  first. 
precisely  how  each  measure  will  appear  upon  the  ballot, 
thus : 

Proposed  by  Initiative  Petition, 

"  Women's  taxpaying  suffrage  amendment,  grant- 
ing to  all  taxpayers,  regardless  of  sex,  the  right  of  suf- 
frage. 

"  300.     Yes. 

"301.  No." 
The  "  yes  "  and  the  "  no  "  under  each  question  are 
accompanied,  as  indicated  above,  by  a  certain  assigned 
number  by  which  it  can  be  referred  to;  and  voters  are 
exhorted  from  the  stump  and  in  the  press  to  vote  "  yes, 
on  300,"  etc.  Next,  the  campaign  book  presents  the 
full  text  of  every  measure  which  is  to  come  before 
the  voters.    And,  finally,  there  are  appended  such  argu- 

25.3 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

ments  for  or  against  any  measures  as  interested  per- 
sons may  file  with  the  state  printer,  such  persons  paying 
the  bare  cost  of  the  additional  printing  and  paper.  Of 
the  thirty-two  measures  presented  in  the  1910  book, 
only  one  was  unaccompanied  by  something  in  the  way 
of  argument,  while  some  called  forth  as  many  as  three 
such  contributions.  Two-fifths  of  the  volume — 85  of 
the  208  pages — were  taken  up  by  these  attempts  to 
persuade  the  voters. 

In  regard  to  candidates,  also,  the  state  acts  as  a 
distributor  of  information.  In  the  first  place,  the 
would-be  candidate  may  file  with  the  proper  official  a 
statement  of  his  views,  to  the  extent  of  one  hundred 
words ;  and  he  may  have  printed  against  his  name  on 
the  nominating  ballot  the  quintessence  of  his  creed,  in 
not  more  than  twelve  words.  Then,  under  a  law  of 
1909,  pamphlets  compiled  by  the  secretary  of  state  are 
issued,  containing  biographical  sketches  and  portraits 
of  candidates  for  party  nomination,  together  with  the 
arguments  filed  favoring  and  opposing  certain  of  them, 
the  expense  of  such  political  advertising  being  paid 
for  by  the  candidate  or  by  such  of  his  representatives  as 
sign  their  names  to  it.  Some  of  this  material  for  the 
last  election  was  highly  interesting,  running  all  the  way 
from  a  dignified  setting  forth  of  the  candidate's  con- 
victions and  pledges,  on  the  one  hand,  to  slangy  bom- 
bast and  demagogy  of  the  rankest  nature,  on  the  other. 

Public  speeches  and  debates  were  frequent.  As 
the  election  drew  near,  the  press  from  day  to  day  pub- 
lished editorials  on  the  leading  issues,  together  with 

254 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

lengthy  letters  from  interested  citizens,  much  as  the 
numbers  of  the  Federalist — to  cite  an  august  precedent 
— were  published  in  the  months  while  the  ratification  of 
the  federal  constitution  was  in  question.  Thousands 
of  privately  printed  leaflets  and  pamphlets  were  dis- 
tributed, and  more  use  than  ever  before  was  made  of 
space  in  the  newspapers;  sometimes  blanket  pages, 
plainly  marked  "  paid  political  advertisement,"  were 
devoted  to  a  single  question.  To  the  majority  of  vot- 
ers in  Oregon — as  in  every  other  state — politics  is,  of 
course,  largely  a  game  of  "  follow  my  leader  " ;  but  it 
would  have  been  difficult  for  any  Oregon  voter  to  have 
remained  totally  ignorant  of  the  principal  points  in- 
volved in  the  more  important  measures  on  which  he 
was  to  vote.  Moreover,  in  such  a  state  of  ferment 
and  heated  discussion  the  leaders  are  forced  to -come 
out  into  the  open  and  show  where  they  stand. 

But  in  Oregon,  with  the  dawn  of  election  day, 
"  the  tumult  and  the  shouting  dies,"  for  election  pro- 
ceedings are  regulated  by  a  most  stringent  Corrupt 
Practices  Act — an  act,  it  is  well  to  recall,  which  was 
rejected  by  the  legislature  but  was  then  forthwith  put 
before  the  people  by  initiative  petition  and  by  them 
enacted.  The  "  Oregon  system  "  has  thus  supplied  one 
of  the  most  essential  conditions  for  its  own  successful 
working.  Election  day  in  Oregon,  since  1908,  is  a 
political  Sabbath,  holy  unto  the  state.  The  time  for 
argument  and  influence  is  past.  The  "  thou  shalt  not  " 
f  the  law  applies,  not  only  to  money  payments  to  af- 
fect votes,  but  to  paying  the  expense  of  transportation 

255 


n 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

of  voters  to  or  from  the  polls  and  to  buying,  selling, 
giving  or  providing  "  any  political  badge,  button  or 
other  insignia  to  be  worn  at  or  about  the  polls  on  the 
day  of  election,  and  no  such  political  badge,  button  or 
other  insignia  shall  be  worn  at  or  about  the  polls  on 
any  election  day."  Neither  shall  any  person  "  at  any 
place  on  the  day  of  any  election  ask,  solicit  or  in  any 
manner  try  to  induce  or  persuade  any  voter  on  such 
election  day  to  vote  for  or  refrain  from  voting  for  any 
candidate  ...  or  any  measure  submitted  to  the 
people,"  under  penalty  of  a  fine  of  not  less  than  five 
dollars  nor  more  than  one  hundred  dollars  for  the  first 
ofifence. 

Assuredly  the  Oregon  voter  needed  to  be  freed 
frqm^O^racEpnsI^onlhS 

jfjie.  w^re_conscientiously  to  do  his  who1e_r1rit3^_gj_^ 
citizen.     It  may  be  doubted wlietker^ny  voters  were 
ever  bef ore_confron^ed  .by  so  compljcatedjJask^s_that. 
presented  by  the  Oregon  ballxjJL^QiJjiatjlay. For  ex- 
ample, the jvoterJn,firerinrt  No.  -9^J^44jJtncunahLcguntx. 
— a_  Portland  precinct — had^taanake-Jiis-diQkfu- he^ 
tween_^aiididates^nam  num- 

ber  of  131,  for  the  filling  of  forty-five  federal,  state, 
and  county  offices — and^there  were  blanks  where  he 
rmglit  v^rite  in  the  names  of  yet  others.  And  when 
hejiad  recordedjiis  choice  ampn^  this  host  of  candi- 
dates, his  task  was  hardly  begunj^ jorjn  Oregon  , the 
voter  is  a  law-maker,  andJtniay  be  thatjiiore^impcu;- 
tant  legislation  was  to  be„enacte^  that  day  than  inSa- 
lem's  "  halls,oi  legislation  "  durinsilhe.  nexMwo  years. 

256 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

Mr.  Brvce  tells  us  that  the  constitution  of  the  United 
States  with  all  its  amendmentsjiiay  be  read  in  twenty- 
three  minutes^  Merely  til,  read  aloud  the  titlesof  the 
measures  upon  that  Oregon  ballot  would  take  the  voter 
iime^  minutes.     Cutting  out  all  the  explanatory Jiead- 

ings,    the   mere    titles    require~something    like 1^900 

words — approximately  three-sevenths  of  the  number  of 
words  in  the  federal  constitution.  Obviously^  the  voter 
must  not  postpone  his  weighing  of  arguments  and  the 
making-up  of  his  mind  as  to  issues  until  he  gets  the 
balloFin  his  hands,  else  the  election  would  hardly  yet 
be  over.  Upon  that  hall' it  were  tliirty-twn  distinct  pro- 
jects of  direct  legislation— eleven  of  theni  involving 
amendment  of  the  state  constitution — placed  therg_by 
"thT^e"^di|fejjn^rocess^  an  act  increasing  the 

salary  of  a  certain  judgeship^  was  a  referendum  orj: 
dered  by  petition_^fjhej)eoplej.ipon  an  act  passed  by 
the  last  legislature.  Six  of  the  measures  were  referred 
to  the  people  by  vote  of  thej;;epresentative  legislature. 
The  other  twenty-five  measures  were  jHLQ.po.s£dJxy_kLL- 
tiative  petition.  These  last-mentioned  measures,  of 
course,  either  had  never  been  passed  upon  by  the  legis- 
lative assembly  or — as  in  at  least  one  instance — had 
met  with  defeat  at  its  hands. 

What  of  the  results  of  the  election?  In  the  first 
place,  it  is  to  be  noted  that  the  culmination  of  so  long 
and  so  bitter  a  campaign  brought  out  a  very  heavy 
vote.  The  record  shows  that  the  state  contains  about. 
135,000  registereTT  voters.     IheTo^l  number  of  bal-__ 

lots  cast,  as  shown  by  the  poll  books,  was  120.248, 

257 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

The  contest  for  governor  resulted  in  the  election  of 
Oswald  West,  the  Democratic  candidate,  by  a  vote  of 
54,853 — a  plurality  of  6,102  over  Jay  Bowerman,  the 
Republican  whose  nomination  had  been  forced  by  the 
"  assembly."  The  Socialist  candidate  polled  8,059 
votes,  and  the  Prohibitionists  6,027.  The  victory  of 
the  Democratic  candidate  is  the  more  significant  from 
the  fact  that  no  other  Democratic  nominee  was  elected  ; 
indeed,  in  almost  every  other  instance,  the  vote  for  the 
Republican  candidate  was  double  that  for  the  Demo- 
crat. For  the  offices  of  state  treasurer,  attorney-gen- 
eral and  state  engineer  the  Democrats  presented  no 
candidates  of  their  own ;  the  Socialists,  on  the  other 
hand,  made  nominations  for  all  of  these  offices  and 
polled  votes  ranging  from  thirteen  to  sixteen  per  cent, 
of  the  vote  cast — an  exceptionally  high  percentage 
for  the  Socialist  vote  in  a  state  election,  but  doubtless 
cast  here  for  candidates  acceptable  to  many  outside  of 
the  Socialist  ranks. 

^Of  the  thirty-two  projects  of  legislation,  the  ballot:;, 
booth   lawmakers  enacted^ine...and— rej ected  twenty- 
three.    But  that  fact,_of  itself,  is  ofJittk-signiiicanc^, 
except  as  indicatjng^jthal.directJegislatio  a_jdf- 

gree  conservatiyej.  In  attempting  to  get  at  the  real 
significance  of  this  remarkable  election,  it  is  necessary 
to  note  how  the  voters  dealt  with  the  widely  diverse 
types  of  projects  submitted  for  their  approval.  One 
of  the  most  eloquent  apostles  of  the  direct  legislation 
movement,  in  a  recent  address,  laid  great  emphasis 
upon  the  proposition  that  direct  legislation  is  a  safe  and 

258 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

sane  method  of  lawmaking  because,  "  if  the  voters  do 
not  understand  a  proposition  that  is  placed  before  them, 
they  will  simply  vote  against  it."  The  writer  sub- 
mits that  psychological  theory  and  the  results  in  this 
election  agree  in  showing  that  it  is  quite  as  likely  that 
the  voters  who  do  not  understand  a  proposition  will 
not  vote  upon  it  at  all ;  and  their  mere  abstention  may 
result  in  verdicts  that  are  far  from  safe  or  sane. 

In  the  present  election,  the  total  numl)er  of  votes 
cast  for  the  several  measures  varied  from  73.3-1  to 
105,215 — from  sixty  to  eighty-seven  per  cent,  of  the 
total  number  of  votes  cast  in  the  election.  No  one  of 
the  measures  adopted  received  the  approval  of  a  ma- 
jority of  that  total.  Leading  by  more  than  10,000  all 
the  other  measures  in  their  pow^r  to  call  forth  votes 
were  the  three  propositions  which  related  to  the  li(|uor 
traffic.  In  recent  years  Oregon  has  had  a  local  option 
law  under  which  the  sale  of  liquor  has  been  prohibited 
in  the  majority  of  the  counties.  This  encouraged  the 
anti-saloon  men  to  hope  that  they  might  capture  the 
urban  counties  by  the  rural  vote  for  state-wide  pro- 
hibition and  orators  were  imported,  e\en  from  tiie 
Atlantic  ^ates,  to  wage  the  battle  against  the  saloon. 
To  oppose  this  project,  the  "  Greater  Oregon  Homs 
Rule  Association  "  was  formed  and  through  its  in- 
fluence a  constitutional  amendment  ''  giving  to  cities 
and  towns  exclusive  power  to  license,  regulate  and  con- 
trol, suppress  or  prohibit  the  sale  of  intoxicating  liquors 
within  the  municipalities  "  was  adopted  by  the  close 
vote  of  53.321  to  50,779.     On  the  other  hand,  a  i)ro- 

259 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

posed  amendment  prohibiting  "  the  manufacture  and 
sale  of  intoxicating  hquors  and  the  traffic  in  them 
within  the  state  "  was  rejected,  43.540  to  61,221  ;  and 
a  drastic  proposal  to  "  prohibit,  prevent  and  suppress 
the  manufacture,  sale,  posession,  exchange  or  giving 
away  of  intoxicating  liquors  .  .  .  within  the 
state  "  was  rejected  by  a  vote  of  42,651  to  63.564.  In 
contrast  with  these  hotly  contested  liquor  questions 
was  a  brief  and  vague  tax  measure,  on  which  32,000 
fewer  men  expressed  an  opinion  than  on  the  local  op- 
tion amendment. 

In  considering  the  rest  of  the  measures,  many  may 
be  dismissed  with  a  word.  Of  the  eight  bills  for  creat- 
ing new  counties,  every  one  was  rejected.  The  total 
votes  on  these  questions  ranged  from  '/y,2>^y  to  85,252. 
In  not  one  of  the  eight  cases  was  the  adverse  majority 
less  than  35,000,  and  in  several  instances  the  rejection 
was  by  a  vote  of  nearly  five  to  one.  Apparently,  al- 
though these  measures  were  debated  in  the  campaign 
book,  the  great  majority  of  the  voters  considered  them 
as  purely  local  issues,  with  the  presumption  against 
their  merit.  The  large  number  of  such  measures  upon 
the  ballot  is  accounted  for  by  the  fact  that  the  present 
law  of  Oregon  does  not  allow  counties  to  be  created 
or  their  lines  to  be  changed  by  an  ordinary  act  of  the 
legislative  assembly;  every  such  law  must  be  voted 
upon  by  the  people.  In  view  of  the  voters'  marked 
disposition  to  defeat  such  propositions,  it  would  seem 
that  some  highly  desirable  changes  may  prove  almost 
impossible  of  attainment.     At  this  same  election,  a  bill 

260 


YEAR  OF  PEOPLE'S  RULE  IX  OREGON 

which  provided  for  the  change  of  existing  county  lines 
and  for  the  creating  of  new  towns,  counties  and  munic- 
ipal districts  by  a  majority  vote  of  the  legal  voters  of 
the  territory  affected  was  rejected,  37,129  to  42,327. 
Each  of  three  bills  providing  for  the  permanent 
support  and  maintenance  of  state  normal  schools  called 
forth  large  votes,  ranging  from  87.099  to  90,235,  but 
only  one  of  them  was  passed.  This  result  is  of  little 
significance  as  the  issues  were  almost  purely  local.  By 
far  the  heaviest  adverse  vote — a  majority  of  58,368 — 
was  cast  against  a  proposal  for  the  payment  to  the 
judge  of  a  certain  court  of  $1,000  annually  by  Baker 
county,  in  addition  to  his  salary  from  the  state.  It  is 
said  that  this  proposal  was  not  without  precedent  and 
merit.  The  enormous  vote  against  it  is  to  be  attrib- 
uted mainly  to  the  proverbial  disposition  of  the  voters 
to  keep  salaries  and  other  expenditures  low — a  ten- 
dency which  may  have  had  its  influence  in  the  defeat 
of  the  normal-school  bills  also.  The  state  was  here 
dragged  into  a  local  quarrel,  inasmuch  as  this  measure 
was  an  act  of  the  legislature  which  had  been  held  up 
by  a  referendum  petition.  Another  issue  little  calcu- 
lated to  be  effectively  handled  by  direct  legislation  was 
the  bill,  proposed  by  initiative  petition,  prohibiting  the 
taking  of  fish  from  the  Rogue  River  except  bv  hook 
and  line.  The  interests  of  the  up-river  and  down- 
river ])eople  were  here  in  conflict.  The  initiati\e  pe- 
tition was  originated  by  an  association  of  up-river  men. 
who  charged  that  the  salmon  were  being  exterminated 
by  commercial  fishing,  and  that  it  was  for  the  interest 

261 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

of  the  state  to  preserve  angling  on  that  river.  On  the 
other  hand,  the  representatives  of  a  canning  concern, 
which  had  made  very  heavy  expenditures  upon  a  plant 
at  the  mouth  of  the  river — a  plant  which  the  proposed 
law  would  have  turned  into  junk — petitioned  the  pro- 
bate court  (for  the  cannery  was  part  of  an  unsettled 
estate)  for  permission  to  spend  $10,000  to  print  and 
distribute  to  all  voters  in  Oregon  a  circular  setting 
forth  facts  as  to  the  originating  of  the  initiative  peti- 
tion and  showing  its  errors.  This  request  being  de- 
nied, they  inserted  in  the  campaign  book  an  argument 
minimizing  or  denying  the  points  made  by  their  op- 
ponents ;  an  argument  was  also  presented  by  the  fisher- 
men of  the  county  in  which  the  cannery  is  located,  set- 
ting forth  their  interests  in  that  industry ;  while  the 
Roofue  River  Fish  Protective  Association  came  to  the 
defense  of  their  petition  with  a  third  argument.  So 
hopelessly  contradictory  were  these  opposing  state- 
ments of  fact  and  of  interest  that  the  Oregonian 
advised  citizens  to  vote  "  no  "  as  the  safer  course. 
Nevertheless,  the  proposed  prohibition  of  commercial 
fishing  was  adopted,  49,712  to  33,397.  Two  of  the 
three  counties  most  interested  voted  against  the  pro- 
hibition by  large  majorities,  but  the  third  and  most 
populous — an  up-river  county — voted  more  than  five 
to  one  in  its  favor.  Whichever  way  the  decision  had 
turned,  there  would  have  been  little  presumption  in  fa- 
vor of  its  justice.  The  question  was  one  which  required 
the  weighing  of  expert  testimony  as  to  the  actual 
effects  of  commercial  fishing  as  practiced  in  the  Rogue 

262 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

River.  It  was  impossible  for  the  voters  to  form  a  well- 
grounded  opinion  from  the  interested  arguments  pre- 
sented in  tlie  campaign  book,  and  it  was  absurd  that 
such  a  cjuestion  should  be  decided  by  the  "  yes  "  or 
"  no  "  of  thousands  of  voters  who  never  were  within 
hundreds  of  miles  of  the  scene  of  operation. 

The  matter  of  employees'  indemnity  for  injuries 
sustained  in  the  course  of  their  employment  came  be- 
fore the  voters  in  two  forms.  By  a  vote  of  32,224  to 
51,719  they  rejected  a  bill,  proposed  by  initiative  pe- 
tition, for  a  commission  of  nine  men,  named  in  the 
bill,  to  investigate  the  subject  and  submit  a  draft  of  a 
bill  to  the  legislative  assembly.  In  the  campaign  book 
this  measure  was  opposed  by  the  Oregon  State  Federa- 
tion of  Labor  on  the  ground  that  such  an  investigation 
was  unnecessary  inasmuch  as  the  question  had  already 
been  thoroughly  investigated  in  other  states,  especially 
in  Xew  York.  The  federation  further  alleged  that  this 
project  was  a  mere  blind,  instigated  by  the  Employers' 
Association  through  whose  influence  an  indemnity  act 
had  been  blocked  in  the  last  session  of  the  legislature. 
This  labor  organization  was  itself  sponsor  for  a  meas- 
ure recjuiring-  protection  for  persons  engaged  in  haz- 
ardous employments,  defining  and  extending  the  lia- 
bility of  employers  and  proxiding  that  contributory 
negligence  should  not  be  a  defence,  although  it  might 
be  taken  into  account  by  the  jury  in  fixing  the  amount 
of  the  award.  This  was  aj)])roved,  56,258  to  33,943- 
This  measure  is  in  line  with  the  position  often  taken 
by  Mr.  Roosevelt  and  by  such  students  of  tlie  labor 

263 


THE   INITIATIVE.    REFERENDUM    AND   RECALL 

movement  as  the  late  Carroll  D.  AWight,  who  have  in- 
sisted that  under  modern  industrial  conditions  the  "  fel- 
low-servant rule  "  is  an  anachronism  which  often  must 
work  grave  injustice.  But  this  is  a  complicated  law, 
making  very  drastic  demands  of  employers,  subjecting 
them  to  fine  or  imprisonment  or  both  in  criminal  pro- 
ceedings for  violation  of  the  law.  and  giving  depend- 
ents of  an  employee  killed  in  the  course  of  his  employ- 
ment "  a  rio-ht  of  action  without  anv  limit  as  to  amount 

o 

of  damages  which  may  be  awarded."  Whether  it  is 
for  the  best  interests  of  Oregon  industries  and  of  the 
employees  themselves  that  these  specific  and  heavy  bur- 
dens be  devolved  upon  the  employers  remains  to  be 
seen.  It  took  the  voters,  however,  not  more  than  one 
second  apiece  to  declare  by  a  majority  of  23,000  that 
this  shall  be  the  law. 

By  substantial  majorities,  two  measures  of  general 
interest  were  passed,  the  one  providing  for  the  loca- 
tion, construction  and  government  of  a  branch  insane 
asylum  (50,134  to  41,504),  the  other  authorizing 
counties  to  exceed  the  $5,000  debt  limit  for  the  purpose 
of  building  permanent  roads  within  the  county,  pro- 
vided such  debts  are  incurred  on  the  approval  of  a  ma- 
jority of  those  voting  on  the  question  (51,275  to 
32,906). 

One  of  the  most  radical  measures  submitted 
authorized  the  state  or  any  county,  municipality  or 
railroad  district  to  purchase  or  construct  railroads  or 
other  highways  within  the  state,  and  to  lease  or  oper- 
ate the  same.     It  has  been  suggested  that  the  real  ob- 

264 


YEAR  OF  PEOPLE'S  RULE  IX  OREGON 

ject  of  this  measure,  which  was  referred  to  the  people 
by  the  legislature,  was  to  secure  better  ser\  ice  from  the 
railroads  by  threat  of  state  action.  It  was  rejected, 
32.844  to  46,070. 

The  pocket-nerve  of  the  American  voter  is  pro- 
verbially sensitive.     Upon  the  ballot  were  three  meas- 
ures relating-  to  taxation.    All  of  them  w'ere  important, 
yet  not  one  of  them  polled  a  large  vote ;  in  fact,  of  the 
two  which  were  rejected,  one  stood  at  the  very  bottom 
of  the  list  of  thirty-two  and  the  other  held  thirtieth 
place  in  the  voters'  interest.     The  first  of  these  three 
was  a  constitutional  amendment,  referred  to  the  peo- 
ple bv  the  legislature,  "directing  a  uniform  rate  of 
taxation  except  on  property  specifically  taxed,  author- 
izing the  levy  and  collection  of  taxes  for  state  purposes 
.  and  for  county  and  numicipal  purposes  upcm  (lifl"erent 
classes  of  property,  and  appropriating  state  taxes  as 
county   obligations."      This   was   rejected,    31,629  to 
41,692.      The   second   was   a   proposed   constitutional 
amendment,  also  referred  to  the  people  by  the  legisla- 
ture, to  omit  from  the  constitution  the  words  "  and 
all  taxation  shall  be  equal  and  uniform  "  and  to  insert 
in  lieu  thereof  the  words  "  taxes  shall  be  levied  and 
collected  for  public  i)urposes  only,  and  the  power  to 
tax  shall  never  be  surrendered,  suspended  or  contracted 
away."     This  amendment  also  was  rejected,  37.619  to 
40,172.     Students  of  Oregon  taxation  methods  have 
asserted  that  these  two  measures  would  open  the  way 
f(jr  much-needed  reforms.      Both  measures  had  been 
passed  by  the  legislature  in  response  to  pressure  from 
18  265 


THE   INITIATIVE.    REFERENDUM   AND   RECALL 

the  granges,  and  both  were  supported  in  the  campaign 
book  by  an  argument  submitted  by  the  Oregon  State 
Federation  of  Labor  and  the  Central  Labor  Council 
of  Portland  and  Vicinity.  But  this  argument  shed  lit- 
tle light  upon  the  precise  effects  to  be  expected  from 
the  adoption  of  the  proposed  changes.  If  clear-headed 
tax  reformers  believed  that  these  measures  were  of 
merit,  they  should  have  secured  for  them  more  effect- 
ive exposition  and  advocacy.  The  third  tax  measure 
called  out  a  larger  vote  and  was  adopted  by  a  small 
majority,  44,171  to  42,127;  yet  its  merit  is  probably 
more  dubious  than  that  of  either  of  the  others.  This 
constitutional  amendment  was  proposed  by  initiative 
petition.  It  provides  that  the  people  of  each  county 
may  "  regulate  taxation  and  exemptions  within  the 
county,  regardless  of  constitutional  restrictions  or 
state  statutes,  and  abolishing  poll  or  head  tax."  This 
amendment  was  advocated  in  a  brief  argument,  which 
covered  the  two  preceding  measures  as  well,  by  the 
above-mentioned  labor  organizations.  Principal  stress 
was  laid  upon  its  abolishing  the  unpopular  poll  tax, 
and  it  is  freely  asserted  that  the  mere  inclusion  in  the 
title  of  those  words  made  a  sufficient  appeal  to  preju- 
dice against  that  minor  feature  of  the  tax  system  to 
secure  the  small  majority  by  which  the  amendment 
was  adopted.  The  other  point  most  emphasized  by 
its  advocates  was  the  opportunity  which  this  law  would 
afford  to  each  county  to  try  experiments  on  a  small 
scale  with  different  systems,  from  wliich  experience 
other  counties  might  profit.     It  was  further  urged  that 

266 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

local  regulation  of  taxation  would  thus  secure  to  the 
people  "  tiie  direct  power  to  manage  their  own  pocket- 
books."  Nowhere  in  the  measure  itself  nor  in  the 
argument  printed  in  the  campaign  book  does  the  ulte- 
rior object  of  the  measure  receive  mention.  That  ob- 
ject, however,  w'as  well  known  and  generally  recog- 
nized; it  was  to  make  possible  the  adoption  of  the 
"  single  tax,"  piecemeal,  by  the  several  counties.  In 
1908  the  single-taxers  put  before  the  people  a  modifica-^^ 
tion  of  the  Henry  George  programme;  the  measure 
was  frankly  and  ably  argued  in  the  campaign  book, 
and  it  was  rejected  by  a  vote  of  nearly  two  to  one 
(32,066  to  60,871).  This  year  the  advocates  of  the 
"  land-value  tax  system  "  pursued  a  shrewder  but  less 
ingenuous  policy ;  they  allowed  the  labor  organizations 
to  pull  out  of  the  fire  some  no-poll-tax  chestnuts,  which 
are  found  to  have  a  strong  single-tax  flavor.  In  the 
press  and  on  the  stump  the  real  object  of  this  measure 
was  brought  out,  and  it  was  advocated  in  a  remarkably 
effective  campaign  pamphlet,  of  which  Mr.  \V.  S. 
U'Ren  was  one  of  the  joint  authors.  It  is  singular 
that  none  of  the  conservatives,  who  since  the  election 
have  been  deploring  the  adoption  of  this  constitutional 
amendment,  had  interest  enough  to  present  their  argu- 
ments in  the  campaign  b(X)k,  where  they  Wduld  have 
reached  every  voter.  Opinions  differ  as  to  the  out- 
come. At  the  previous  election  in  Multnomah  county, 
1908.  the  single-tax  proposition  was  defeated  by  only 
483  votes  in  a  tc^tal  of  22,139.  This  would  suggest 
that  by  the  conversion  of  some  three  or  four  hundred 

267 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

voters  to  the  single-tax  creed,  the  most  populous  county 
of  the  state  may  be  made  the  first  important  laboratory 
for  testing  the  Henry  George  theories.  Naturally  the 
single-taxers  are  jubilant^  ;  but  in  the  rest  of  the  com- 
munity— even  among  those  not  indisposed  to  shift 
upon  land  values  a  far  heavier  proportion  of  the  tax 
burden — there  is  a  grave  feeling  of  apprehension.  It 
is  felt  that  no  one  county  can  safely  stand  aloof  and 
by  itself  in  financial  relations  in  which  the  interests  of 
the  entire  commonwealth  are  so  closely  interlinked. 

The  measure  which  called  out  by  far  the  largest 
vote,  with  the  exception  of  the  liquor  measures,  was 
the  "  women's  taxpaying  suffrage  amendment,  grant- 
ing to  taxpayers,  regardless  of  sex,  the  right  of  suf- 
frage." So  read  the  official  title  placed  upon  the  bal- 
lot by  the  attorney-general.  This  is  the  fourth  time 
within  ten  years  that  this  issue  has  been  forced  to  a 
vote,  three  times  by  initiative  petition.  At  previous 
elections  the  majority  against  women's  suffrage  has 
been  as  follows:  in  1900,  2,137;  in  1906,  10,173;  in 
1908,  21,649.  This  year  the  suffragists  took  a  new 
tack,  emphasizing  strongly  the  grievances  of  the  many 
taxpaying  women  of  the  state,  and  closing  their  ap- 
peal thus :  "  Oregon  has  now  the  opportunity  to  lead 
the  world  in  a  safe  and  conservative  extension  of  the 
elective  franchise  to  every  woman  who  is  taxed  to  sup- 
port the  government,  and  we  earnestly  hope  we  shall 

1  Mr.  Joseph  Fels,  the  leading  single-tax  propagandist  has  al- 
ready gone  to  Oregon,  and  the  single-tax  programme  is  openly  an- 
nounced as  the  chief  issue  for  19 12. 

268 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

not  be  compelled  to  repeat  this  appeal  in  19 12."  But 
the  voter  who  read  not  merely  the  ballot  title  and  the 
appeal  but  also  the  law  itself  found  that  there  was  a 
glaring  discrepancy  between  them;  for  the  proposed 
amendment  made  a  positive  and  sweeping  grant  of  the 
suffrage  to  "every  citizen  of  the  United  States  of  the 
age  of  twenty-one  years  and  upwards,  who  shall  have 
resided  in  the  state  during  the  six  months  immediately 
preceding  such  election/"  and  so  forth.  Only  after  this 
positive  grant  had  been  fully  set  forth  was  there 
added :  "  It  is  expressly  provided  hereby  that  no  citi- 
zen who  is  a  taxpayer  shall  be  denied  the  right  to  vote 
on  account  of  sex."  As  the  opponents  of  the  measure 
said,  in  their  campaign  book  argument:  "The  last 
clause  in  the  proposed  amendment  about  taxpaying 
women  is  pure  buncombe.  It  adds  nothing  to  and  de- 
tracts nothing  from  the  preceding  provisions."  The 
placing  of  the  above  title  upon  such  a  measure 
suggests  some  interesting  questions.  What  is  to 
be  said  of  the  legal  acumen  of  an  attorney-general 
who  could  either  formulate  or  accept  such  a  mis- 
leading title?  As  for  the  women  who  presented 
this  as  "  a  safe  and  conservative  extension  of  the 
elective  franchise  to  every  woman  who  is  taxed,"  if 
they  were  not  clear-headed  enough  to  see  that  the  law 
would  at  the  same  time  extend  the  suffrage  to  every 
woman  who  is  not  taxed,  provided  she  were  a  citizen 
of  the  required  age  and  residence,  their  addition  to  the 
electorate  would  not  tend  greatly  to  raise  its  intellec- 
tual plane;  if,  one  the  other  hand,  as  a  last  resort  they 

269 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

were  willing  to  win  the  snffrage  by  a  shabby  triclc, 
they  would  bring  to  the  polls  little  of  that  elevation  of 
political  morality  which  they  have  often  claimed  would 
be  their  chief  contribution  to  political  life.  The  voters' 
verdict,  for  the  fourth  time,  was  against  woman's 
suffrage,  35,270  to  59,065. ^ 

There  remain  to  be  considered  the  measures  which 
most  closely  concerned  the  future  of  "  people's  rule  " 
in  Oregon  and  of  the  "  Oregon  system."  By  the  legis- 
lature there  were  referred  to  the  people  two  measures 
which  were  backed  by  much  the  same  influences  which 
instituted  the  "  assembly "  and  forced  Bowerman's 
candidacy  as  the  Republican  nominee.     The  first  was 

»  The  Oregon  suffragists'  initiative  petition  for  19 12  has  already- 
been  filed  (January,  191 1). 

It  is  singular  that  on  the  same  day  (November  8)  in  the  adjoining 
state  of  Washington  the  voters  should  have  adopted  a  woman's 
suffrage  amendment  by  a  considerable  majority.  On  the  eve  of  the 
election  Alfred  Brown,  who  had  been  on  the  stump  in  Washington 
for  woman's  suffrage,  predicted  its  victory  at  the  polls,  adding: 
"The  ambiguous  wording  of  the  amendment  will  poll  many  votes  for 
suffrage  since  the  words  'woman's  suffrage'  are  not  mentioned. 
We  .  .  .  often  vote  'yes  '  when  we  don't  know  what  we  are  voting 
for." — Boston  Herald,  November  5,  1910. 

The  suffrage  was  extended  to  women  in  Washington  Territory 
by  a  law  of  1883,  entitled  "An  Act  to  amend  sec.  3050  ch.  238  of 
the  Code  of  Washington  Territory."  Under  this  women  voted  in 
Washington  till  1887  when  this  law  was  held  to  be  unconstitutional 
because  its  object  was  not  expressed  in  its  title  as  required  by  the 
Organic  Act.  "Females  then  are  not  voters  in  this  territory." 
Harland  v.  Territory  of  Washington,  3  Washington  Territorial  Re- 
ports, 131.  It  is  a  singular  coincidence  if  woman's  suffrage  has  now 
been  restored  in  Washington  by  means  of  a  ballot  title  purposely 
evasive  "relating  to  the  qualifications  of  voters." 

270 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

a  measure  providing  for  a  convention  for  the  purpose 
of  making  a  general  revision  of  the  constitution.  This 
was  antagonized  by  the  People's  Power  League,  not 
only  because  it  was  needless  and  would  occasion  un- 
necessary expense  and  disturbance  of  business,  but 
also  on  the  ground  that  it  was  a  scheme  for  getting 
a  constitution  adopted  and  "  proclaimed  "  which  would 
do  away  with  the  initiative,  the  referendum,  the  recall, 
the  direct  primary  and  "  statement  No.  i."  It  was 
defeated.  23,143  to  59,974.  The  second  measure  pro- 
posed an  amendment  of  the  constitution  providing  a 
separate  district  for  the  election  of  each  senator  and 
representative.  This  was  an  obvious  attempt  to  pre- 
vent the  carrying  out  of  the  principle  of  proportional 
representation,  adopted  by  the  Oregon  voters  by  a 
large  majority,  only  two  years  earlier;  and  it  was 
rejected  by  a  vote  of  24,000  to  54,252. 

The  People's  Power  League  succeeded  better  in 
defending  the  ground  already  won  than  in  capturing 
the  new  fields  toward  which  they  had  directed  their 
campaign.  Of  the  four  measures  which  they  formu- 
lated by  the  elaborate  process  described  above,  and  to 
which  they  gave  earnest  support  in  the  campaign  book, 
in  the  press,  in  pamphlets  and  on  the  stump,  the  two 
more  radical  measures  were  rejected.  Of  these,  the 
one  which  suffered  the  worst  defeat  was  the  proposed 
law  creating  the  board  of  "  people's  inspectors  of  gov- 
ernment," who  were  also  to  be  charged  with  the  duty 
of  publishing  the  Oregon  Official  Gacrtlc.  This  meas- 
ure was  loosely  drawn ;  it  sought  to  create  an  office 

271 


THE  INITIATIVE,    REFERENDUM   AND   RECALL 

which  was  an  absolute  innovation;  and  some  of  its 
features  were  calculated  to  arouse  distrust.  The  news- 
papers ridiculed  and  opposed  the  institution  of  any 
such  board  of  recording  angels  for  functions  which 
the  press  assumes  to  perform,  and  the  measure  was 
rejected,  29,995  to  52,538.  Defeat,  though  by  a  closer 
vote,  37,031  to  .44,366,  was  also  the  fate  of  one  of  the 
most  carefully  thought  out  and  comprehensive  meas- 
ures upon  the  ballot,  namely,  the  proposed  constitu- 
tional amendment  which  essayed  to  redistribute  the 
legislative  power  in  a  commonwealth  where  the  initia- 
tive and  referendum  have  received  unprecedented  ex- 
tension. There  was  no  measure  upon  the  ballot  of 
equal  political  interest,  and  none  of  which  the  opera- 
tion would  have  commanded,  in  anything  approaching 
the  same  degree,  the  attention  of  the  country.  It 
would  have  introduced  a  variety  of  untried  correctives 
for  legislative  abuses  which  are  widespread — the  ger- 
rymander, tyrannical  rules,  absenteeism  and  log-roll- 
ing. 

By  a  still  closer  vote,  43,353  to  41,624,  the  pro- 
visions of  the_clir£ct.^pjimary_Jaw:, were  extendeii—to 
presidential  nominations.  On  the  nineteenth  of  April, 
1912,  accordingly,  each  voter  of  Oregon  will  have  a 
formal  opportunity  to  designate  his  personal  choice 
of  candidates  for  president  and  vice-president  of  the 
United  States;  l^JLeiLjTe_jmay_taJ<ejw^  m_^ 
directly  candidates  for  piresidential.  electors,  and  in 
electing,  under  a  system  of  proportional  representation, 
delegates  to  the  national  conventiops.     Men  of  char- 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

acter  and  not  merely  of  cash  may  stand  a  better  chance 
of  being  elected  delegates,  since  the  state  is  to  pay  the 
expenses  of  each,  up  to  $200.  Sjjace  to  the  extent  oj, 
fourpages  will  be  available  in  the  state  carnpaigu 
book  for  setting  forthjthe  reasons  why  each  of^he_se\^ 
eral  candidates  for  any  office  to  be  vo_ted_  for  by._tlie 
voters  oTlhe  state  at  large  should  be  elected,  The  sena- 
torial and  congressional  candidates  must  pay  at  the 
rate  of  $100  a  page,  but  "  no  charges  shall  be  made 
against  the  candidates  for  president  and  vice-president 
of  the  United  States  for  this  printed  space."  Four 
pages  of  free  political  advertising  are  therefore  to  be 
available  for  each  regularly  nominated  presidential 
candidate  in  19 12.  It  may  be  of  interest  to  several 
recently  elected  governors  of  eastern  states  to  know 
at  once  that  the  Oregon  campaign  book  runs  about  six 
hundred  words  to  the  page. 

By  a  substantial  majority,  44,538  to  39,399,  the 
voters  adopted  the  amendment  aiming  at  reforms  in 
the  administration  of  the  law.  ThenTost_significant. 
changes  are  jthe  abolition  _of  the  grant  of  new  tnals 
onmere  technicalities  and  the  substitution  of  a  threes 
f < nirths  majority  for  unanimity  in  the  rendering  oi_ii 
verdict  by  a  jury  in  civil  trials^ 

As__the_s_moJie-£Lf  the^ xontest  clears  away,  it  is, 
evident  tha^'^eople's  rule  "  has  strengthened  its  posi- 
tion.  In  a  state  normally  Republican  by  25,000,  the. 
election  of  a  Democrat  by  a. plurality  of  6jdool£>yqx  the 
Republican  forced  upon  his  party  by  the  "  assembl:^  " 
can  have^o  other  meaning  than  that  the  rank  and  file 
"  273 


THE  INITIATIVE,    REFERENDUM    AND   RECALL 

of  the  voters  resent  the  attempt  to  emasculate  th_g 
direct  primafy^and  the  '''  Oregon  system^"  The  rejec- 
tion of  the  proposed  constitutional  convention  indi- 
cates that  the  voters  are  confident  that  needed  changes 
can  be  made  by  the  initiati\e  and  referendum,  and  that 
they  do  not  propose  to  run  any  risk  of  losing  those 
powerful  agencies  of  public  opinion.  They  rejected 
the  single-district  measure,  because  they  had  already 
committed  themselves  to  the  principle  of  proportional 
representation,  although  they  were  not  yet  ready  to 
accept  the  application  of  it  submitted  to  them  at  this 
election.  In  approving  the  reform  of  the  judicial  sys- 
tem and  the  extension  of  the  direct  primary  law.  they 
were  following  the  same  leadership  which  in  the  past 
ten  years  has  made  Oregon  the  most  interesting  po- 
litical experiment  station  in  the  country  and  has  con- 
ferred upon  her  people  a  greater  degree  of  direct  self- 
government  than  is  to  be  found  in  any  other  American 
commonwealth. 

But  does  this  "  new  birth  of  democracy  "  promise 
permanence  of  the  good  and  progress  toward  the  bet- 
ter? It  must  be  confessed  that  the  election  just  past 
has  given  its  notes  of  warning.  In  the  first  place,  the 
ballot  was  a  preposterous  thing.  "  It's  like  voting  a 
bed-quilt  "  was  the  comment  of  one  of  the  policemen 
at  the  polls.  Experience  will  certainly  prove  that  the 
"  short  ballot  "  movement  and  the  "  people's  rule  " 
movement  must  go  together.    The  voter's,  task  must-be 

made    reasonablB. Not  -even    the — allowing   of   twp 

months  for  the  conning  of  a  campaign  book  can  make 

274 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

it  reasonable  to  expect  that  the  voters,  at  a  single  elec- 
tion, will  choose  with  discrimination  forty-five  officers 
from  a  list  of  i.^i  candidates  and  then  vote  with  intelr- 
ligence  upon  thirty-two  measures  of  every  variety  ancL 
^rade  of  importance..  It  is  generally  conceded  that  a 
considerable  proportion  of  the  measures  were  absurdly 
unsuited  to  be  voted  upon  by  the  people  of  the  entire 
state.  This  was  certainly  the  case  with  the  eight 
county  bills :  the  three  normal-school  bills  probably  be- 
long in  the  same  class ;  and  at  least  two  other  measures 
were  of  little  general  interest.  The  men  who  have  had 
most  influence  in  introducing  "  people's  "  rule  in  Ore- 
gon are  not  blind  to  this  defect.  In  the  first  draft  of 
the  measure  for  reconstituting  the  legislative  power 
there  was  a  provision  that  the  number  of  direct  legis- 
lation measures  to  be  voted  on  at  any  one  election 
should  be  limited  to  twelve,  and  this  clause  was 
strongly  supported  by  argument  from  theory  and  from 
Oregon  experience.  It  was  found,  however,  that  this 
proposed  limitation  upon  the  voter's  power  was  un- 
popular, and  it  was  accordingly  thought  best  to  cut  it 
out  lest  it  should  imperil  the  entire  measure.  The 
Oregon  voter  has  found  that  he  can  make  laws,  and 
he  is  little  impressed  by  the  argimient  that  he  would 
do  this  work  better  if  he  attempted  less  of  it  at  one 
time. 

The  experience  of  this  election,  furthermore,  has 
proved  the  need  of  attention  both  to  the  psychology 
and  to  the  ethics  of  title-writing.  One  measure,  said 
to  have  been  of  genuine  merit,  is  believed  to  have  been 

27s 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

defeated  because  its  title  included  a  doubt-raising 
clause  which  had  been  successfully  avoided  in  the  text 
of  the  law  itself.  Another  measure  of  dubious  merit 
was  passed,  probably  because  the  title,  while  silent  as 
to  the  main  intent  of  the  law,  made  a  successful  ap- 
peal to  an  exaggerated  popular  prejudice  against  a  poll 
tax.  Direct  legislation  is  not  the  spontaneous  register- 
ing of  the  individual  voter's  matured  judgment  as  to 
the  best  method  of  dealing  with  a  given  problem ;  the 
voters  simply  say  "yes"  or  "no"  (or  say  nothing) 
to  specific  proposals  originated,  framed  and  phrased — 
and  every  step  in  the  procedure  is  of  consequence — 
for  them  by  some  one  else.  By  whom?  F'or  what? 
These  may  at  times  prove  disquieting  questions.  For 
example,  not  one  of  the  three  tax  measures  upon  the 
November  ballot  was  drawn  in  such  language  as  to 
make  its  intent  clear  and  unmistakable;  nor  was  this 
lack  supplied  by  any  enlightening  argument  in  the 
campaign  book,  the  one  argument  there  submitted,  in 
joint  advocacy  of  the  three,  being  in  tone  and  in  logic 
little  calculated  to  serve  as  the  basis  for  forming  a  can- 
did judgment.  Direct  legislation  will  presently  be  giv- 
ing to  Oregon  a  poor  travesty  of  "  people's  rule,"  un- 
less to  the  framing  of  laws  and  to  the  phrasing  of  their 
titles  there  is  brought  a  keener  intelligence  and  a  more 
sensitive  conscience  than  were  responsible  for  the  law 
intended  to  secure  the  piecemeal  introduction  of  the 
single  tax  and  for  the  "  women's  taxpaying  suffrage 
amendment."  As  one  of  the  writer's  correspondents 
puts  it :    "  It  is  quite  clear  that  popular  legislation  can 

276 


YEAR  OF  PEOPLE'S  RULE  IN  OREGON 

be  worked  only  by  '  sinipbfying  '  issues;  and  tbe  fur- 
ther this  goes,  the  more  important  becomes  the  real 
initiative  of  the  irresponsible  persons,  whether  pa- 
triots or  schemers,  who  formulate  the  *  simplified ' 
issues." 

Jljl  tlie  \v]ink>  rnnsidpi-ing  ihe  immpnc;p_rnUin]^>:ilX 
of  the  task  which  was  set  before  them,  it  must  be 
acknowledged  that  the  Oregon  voters  stood  the  tes^ 
remarkably  well.  They  detected  and  repelled  covert 
attacks  upon  their  own  power;  they  rejected  mea sures 
so  radical  as  to  arouse  doubts:  they  gave  their  ap- 
proval  of  laws  which,  in  the  main,  are  consistent  ajid 
develop  the  system  already  adopted^ 

CriFics  will  differ  as  to  the  merit  of  the  several 
measures,  and  they  may  deride  "  voting  by  the  square 
yard."  But  this  much  the  most  conservative  of  them 
must  concede :  in  Oregon  the  state  is  not  shriveling 
up,  nor  have  national  issues  there  entirely  submerged 
state  issues — two  valid  criticisms  which  Mr.  Bryce 
passed  upon  American  state  politics  in  general.  In  the 
past  twelve  months  Oregon  voters  have  had  affairs  of 
their  own  to  think  about,  which  have  been  quite  as 
engrossing  as  the  tariff  or  the  new  nationalism.  There 
has  been  a  vitality,  a  genuineness  in  Oregon  politics 
sharply  in  contrast  with  the  state  campaigns  in  many 
of  the  eastern  states.  In  Oregon  no  man  has  been  able 
to  read  his  title  clear  to  office  in  the  state  or  at  Wash- 
ington by  merely  subscribing  to  the  creed  of  some 
leader  in  one  of  the  national  parties;  he  has  had  to 
face  the  question  :    "  What  do  you  stand  for,  on  these 

277 


THE  INITIATIVE,    REFERENDUM    AND   RECALL 

definite  issues  regarding  the  carrying  on  of  govern- 
ment in  Oregon?"  With  keen  interest  the  voters 
have  been  grappling  with  the  problems — political,  in- 
dustrial, educational,  financial — of  self-government 
within  their  own  state.  A  genuine  campaign  of  edu- 
cation has  been  in  progress,  which  cannot  fail  to  pro- 
duce important  and  enlightening  results,  quite  above 
and  beyond  the  verdict  rendered  November  8  upon  the 
various  points  which  were  at  issue  during  the  preced- 
ing months  of  debate. 


CHAPTER  XI 

THE    UNFAVORABLE    RESULTS    OF    DIRECT    LEGISLATION 

IN    OREGON 

The  other  side  of  the  question  concerning  the 
vahie  of  direct  legislation  has  been  presented  by  Fred- 
erick V.  Holman,  Esq.,  the  President  of  the  Oregon 
Bar  Association.  The  Chicago  Civic  Federation, 
which  is  also  opposing  the  initiati\e  and  referendum, 
has  given  widespread  publicity  to  Mr.  Holman's  views 
in  one  of  its  bulletins,  which  is  here  reproduced : 

I  am  here  to  tell  you  of  some  of  the  results  under 
the  initiative  and  referendum  amendment  of  the 
Oregon  constitution.  I  am  a  native  of  Oregon. 
It  has  always  been  mv  home,  and,  therefore,  I 
can  claim  some  familiaritv  with  the  economic  condi- 
tions  which  prevail  in  my  native  state.  While  Oregon 
has  an  area  of  over  90,000  square  miles  and  is  one- 
third  larger  than  the  state  of  Washington,  it  has 
grown  slowly.  By  reason  of  the  lack  of  railroads  the 
eastern  part  of  Oregon — ^approximately  55,000  square 
miles — is  sparsely  settled.  Its  population  is  672,765, 
a  little  less  than  one-third  oi  the  population  of  the  city 
of  Chicago.     The  total  vote  for  governor  in  Novem- 

279 


THE   INITIATIVE,   REFERENDUM    AND   RECALL 

ber,  1910,  was  117,690,  a  little  more  than  one-third  of 
the  vote  of  Chicago  last  November.  Portland  is  the 
only  city  of  any  considerable  size  in  Oregon.  Its  pop- 
ulation is  a  little  over  207,000.  Two-thirds  of  Ore- 
gon's population,  therefore,  is  in  small  towns  and  in 
the  country  at  large.  We  must  consider,  too,  that  Ore- 
gon was  settled  by  hardy  and  intelligent  pioneers 
whose  influence  is  still  largely  felt. 

If  you  in  Illinois  wdsh  to  learn  of  the  initiative  and 
referendum  by  our  experience,  it  is  now  a  good  time 
to  begin.  If  the  plan  is  unsatisfactory  in  Oregon,  with 
its  agricultural  and  village  population,  largely  of 
Anglo-Saxon  ancestry,  keenly  interested  in  public  af- 
fairs and  with  environments  conducive  to  deliberation, 
what  will  be  the  result  in  the  cosmopolitan  city  of  Chi- 
cago, with  a  steadily  increasing  proportion  of  its  vast 
population  accepting  for  the  first  time  large  responsi- 
bilities in  citizenship,  and  with  its  hurry  and  turmoil  of 
economic  life  anything  but  favorable  to  the  study  and 
deliberation  presupposed  by  the  initiative  and  referen- 
dum? Obviously  the  Oregon  plan  might  succeed  in 
Oregon  and  be  a  failure  in  Illinois.  But,  if  the  plan 
has  failed  in  Oregon  in  times  of  quiet  and  prosper- 
ity, what  may  be  your  experience  of  legislation  by 
popular  vote  in  times  of  unrest,  turmoil  or  mob  vio- 
lence? Has  it  failed  in  Oregon?  Let  us  scrutinize 
the  facts. 

When  the  initiative  and  referendum  amendment  to 
the  constitution  of  Oregon  was  proposed,  its  advocates 
stated  (as  I  understand  it  has  been  alluringly  stated  in 

280 


UNFAVORABLE   RESULTS   IN   OREGON 

Illinois)  that  it  was  to  be  merely  a  clnb  in  the  hands 
of  the  people  for  securing  good,  and  checking  bad, 
legislation ;  that  it  would  be  invoked  rarelv  and  would 
be  a  "  reserve  "  power  and  not  an  active  nor  a  disturb- 
ing power.  There  was  no  scandalous  conduct  of  our 
state  affairs  to  demand  this  amendment.  No  public  or 
quasi-pul)lic  corporations  sought  to  control  the  politics 
of  the  state  or  to  meddle  with  public  affairs  as  was  the 
case  in  California  and  some  other  states.  Our  legis- 
lature was  no  worse  than  other  state  legislatures; 
probably  better  than  some.  But  on  the  plea  of  agita- 
tors that  its  character  would  be  improved,  and  after 
endorsement  by  all  political  parties,  this  amendment 
was  adopted  in  1902  by  a  vote  of  62,024  to  5.668,  with 
no  debate  and  little  serious  consideration  on  the  part 
of  most  voters,  and  with  aljout  twenty-four  per  cent, 
of  all  the  voters  at  that  election  failing  to  vote  on  the 
measure  at  all.  This  amendment  provided  for  the 
initiation  of  legislation  (the  placing  of  a  law  or  con- 
stitutional amendment  on  the  ballot  to  be  voted  up  or 
down )  by  petition  of  "  not  more  than  eight  per  cent, 
of  the  voters,"  and  for  the  submission  of  legislative 
enactments  to  popular  vote  by  petition  of  five  per  cent, 
of  the  voters.  These  same  percentages  T  understand 
are  now  proposed  for  Illinois. 

We  now  come  to  the  consideration  of  three  basic 
questions : 

I.  To  what  extent  did  this  amendment  operate  as 
a  "  reserve  "  power,  ruid  to  what  extent  was  it  thus 
effecti\e? 

19  281 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

2.  \Miat   character   of  legislation    was   proposed 
under  this  "  reserve  "  power? 

3.  Did  the  people  use  this  "  reserve  "  power  in- 
telligently? 

In  reply  to  the  contention  that  this  "  reserve " 
power  would  improve  the  character  of  the  legislature, 
I  will  state,  without  fear  of  contradiction,  that  there 
has  been  no  substantial  change  in  the  kind  of  legisla- 
tors since  the  adoption  of  this  amendment.  As  to  the 
operation  of  this  amendment  as  a  "  reserve  "  power, 
I  shall  merely  call  attention  to  the  constant  increase 
in  size  of  our  direct  legislation  ballots.  In  1904  two 
measures  were  submitted;  in  1906,  eleven;  in  1908, 
nineteen  (ten  constitutional  amendments  and  nine  pro- 
posed laws)  ;  in  1910,  thirty-two  (eleven  constitutional 
amendments  and  twenty-one  proposed  laws,  and  the 
initiative  was  responsible  for  twenty-four  of  these 
propositions). 

How  many  propositions  shall  we  have  placed  upon 
our  ballot  for  the  confusion  of  our  voters  at  our  next 
state  election  ?  Signatures  are  easy  to  get.  In  Oregon 
any  person  may  have  any  crank  measure,  proposed  law 
or  constitutional  amendment  alike,  placed  upon  the  bal- 
lot. All  that  is  necessary  is  a  petition  and  the  signa- 
tures of  not  less  than  10,000  voters,  and  professional 
signature-getters  will  get  the  signatures — for  a  con- 
sideration. 

The  general  characteristics,  particularly  of  initia- 
tive measures,  have  been  careless  and  loose  phrase- 
ology, and  ambiguities  leading  to  difficulties  for  the 

282 


UNFAVORABLE   RESULTS   IN   OREGON 

supreme  court.  The  very  vagueness  of  the  phrase 
"  nut  more  than  eight  per  cent,  of  the  legal  voters," 
in  the  initiative  amendment  itself  is  typical  of  the 
crudity  of  resulting  measures.  The  petition  which 
"  shall  include  the  full  text  of  the  measure  proposed," 
once  filed,  cannot  be  amended.  One  measure  was 
adopted  which  was  declared  void  because  it  had  no 
enacting  clause.  The  omission  was  discovered  after 
the  petition  w^as  filed,  and  the  measure  could  neither  be 
amended  nor  withdrawn  from  the  ballot.  Another 
fundamental  objection  to  the  Oregon  plan  is  that  it  is 
rapidly  depriving  us  of  that  stability  in  government 
which  the  constitution  is  designed  to  supply.  A  con- 
stitution is  a  bill  of  rights  setting  forth  the  basic  prin- 
ciples under  which  the  people  commit  themselves  to  re- 
striction of  individual  privileges  for  the  benefit  of  the 
mass.  The  Oregon  constitution  is  now  being  changed 
as  readily  and  almost  as  frequently  as  the  statutes  and 
by  minorities  of  the  voters.  It  is  optional  with  the  au- 
thor of  any  initiative  measure  whether  it  shall  be  pre- 
sented as  a  proposed  amendment  or  as  a  proposed  law. 
The  only  real  distinction  lies  in  the  fact  that  the  legisla- 
ture may  repeal  an  objectionable  law,  but  that  a  bad 
constitutional  amendment  can  be  repealed  only  at  the 
next  election  by  a  majority  of  those  voting  on  the  ques- 
tion, and  therefore  remains  operative  much  longer 
than  the  law. 

Having  thus  observed  the  operation  of  the  initia- 
tive and  referendum  as  a  "  reserve  "  power,  let  us  see 
whether  or  not  the  voters  use  this  power  intelligently. 

283 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

Senator  Bourne  of  Oregon,  speaking  in  the  United 
States  Senate,  May  5.  19 10,  said  that  the  people  of 
Oregon  had  acted  intelHgently  on  the  initiative  and 
referendum  up  to  and  incUiding  the  year  1908,  the 
election  of  19 10  being  subsequent  to  the  delivery  of  his 
speech.  We  naturally  ask  what  is  "  acting  intelli- 
gently "  ?    When  is  such  action  possible  ? 

I  have  not  calculated  the  percentage  of  electors 
voting  on  all  the  various  measures,  but  I  am  informed 
by  an  ardent  advocate  of  the  Oregon  plan  that  the 
greatest  percentage  of  voters  v^ho  have  acted  on  any 
of  these  measures  in  Oregon  is  ninety  per  cent,  and 
the  smallest,  sixty-two  per  cent.  This  is  based  on  the 
number  of  electors  voting  at  an  election,  not  on  the 
registered  vote.  On  this  basis  ten  per  cent,  do  not  vote 
at  all  and  as  many  as  thirty-eight  per  cent,  do  not  vote 
on  some  measures.  Under  the  Oregon  plan  it  is  a 
majority  of  those  voting  on  a  proposition,  not  a  ma- 
jority of  all  the  voters,  which  determines  its  fate. 
Certainly  those  who  do  not  vote  on  a  measure  do  not 
act  intelligently  on  it.  There  are  many  who  vote 
"  yes  "  on  all  measures,  as  some  vote  their  straight 
party  ticket  without  regard  to  fitness  of  the  candidates, 
and  this  cannot  be  called  intelligent  voting.  Then 
there  are  many  men  of  business  affairs  and  intelli- 
gence who  have  not  the  time  to  consider  most  of  these 
measures  and  who,  unless  their  attention  is  especially 
attracted,  vote  "  no  "  without  regard  to  the  merits  or 
demerits  of  amendments  and  laws.  In  my  opinion, 
such  men  do  not  act  intelligently.     It  is  impossible  to 

284 


UNFAVORABLE   RESULTS   IN   OREGON 

ascertain  the  number  of  voters  who  act  thus  unintelli- 
gently,  excepting,  of  course,  those  who  do  not  vote  at 
all.  It  is  significant,  however,  that  the  average  per- 
centage of  those  voting  for  state  officers  who  also  have 
voted  on  initiative  and  referendum  measures  has  de- 
creased progressively  from  78.5  per  cent,  in  1904  to 
^2.2  per  cent,  in  1910. 

Comparatively  few  of  the  direct  vote  measures  in 
1 910  received  more  than  80  per  cent,  of  the  total  vote 
for  governor.  The  total  vote  on  the  woman's  suffrage 
amendment  (overwhelmingly  defeated)  was  563  votes 
more  than  80  per  cent.  Most  of  the  measures  acted 
upon  may  be  grouped  as  follows  with  reference  to  the 
percentage  they  received  of  the  vote  for  governor : 
three  measures,  between  75  and  80  per  cent. ;  twelve, 
between  70  and  75;  twelve,  between  65  and  70;  one, 
a  fraction  less  than  62.04  per  cent.  The  principal  in- 
terest in  these  initiative  measures  in  19 10  touched 
three  questions  affecting  the  sale  of  liquor.  These 
received  total  votes  of  101,375  (86.13  per  cent.),  104,- 
712  (89.81  per  cent.)  and  106,213  (90.24  per  cent.). 
Thus  it  will  be  seen  that  (with  the  exception  of  the 
three  liquor  measures  and  that  for  woman's  suffrage) 
40  per  cent,  of  the  total  vote  might  have  carried  twelve 
measures;  35  per  cent,  twehe,  and  less  than  '^^2  per 
cent.  one.  Moreover,  not  one  of  the  nine  measures 
which  will  carry,  including  the  home-rule  amendment, 
received  a  majority  of  the  total  vote.  It  is  a  political 
axiom  that  the  majority  .should  rule,  but  without 
prejudice  to  the  rights  of  the  minority.     In  Oregon 

28s 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

under  the  initiative  the  minority  rules  in  many  in- 
stances and  sometimes  to  the  prejudice  of  the  major- 
ity, as  I  shall  subsecjuently  show. 

I  cannot  go  into  all  the  measures  voted  upon  since 
1902,  but  I  shall  cite  a  few  voted  on  in  1908  and  19 10 
to  show  you  that  if  the  initiative  and  referendum  are 
good  per  se  (and  I  am  convinced  they  are  not),  then 
the  Oregon  form  is  not  a  good  one. 

In  the  Columbia  River  below  the  mouth  of  the 
Sandy  River  salmon  are  taken  mostly  by  gill  nets,  traps 
and  seines.  Above  the  Sandy  River  they  are  taken 
mostly  by  fish-wheels  in  rapid  water.  Strong  antago- 
nism between  the  lower  and  upper  river  fishermen  has 
resulted.  In  1908  each  of  these  interests  under  the 
initiative  proposed  a  bill,  one  designed  to  prohibit 
commercial  fishing  below  the  Sandy  River,  and  the 
other  calculated  to  prohibit  commercial  fishing  above  it. 
Each  of  these  bills  received  a  favorable  majority  at  the 
election ;  became  law,  and  all  commercial  fishing  on  the 
Columbia  was  prohibited.  It  is  true  that  when  two 
antagonistic  bills  each  receive  a  majority,  the  one  hav- 
ing the  largest  affirmative  vote  is  to  be  regarded  as 
the  law ;  but  these  two  bills  were  not  antagonistic,  each 
applying  to  different  parts  of  the  Columbia  River.  For- 
tunately the  legislature  met  before  the  next  fishing 
season  and  the  matter  was  adjusted.  However,  had 
those  bills  been  amendments  to  the  constitution  there 
could  have  been  no  relief  until  the  next  regular  elec- 
tion two  years  after,  and  one  of  the  great  industries  of 
our  state  would  have  been  paralyzed.     Did  the  vote 

286 


UNFAVORABLE   RESULTS   IN   OREGON 

on  these  fishing  bills  show  intelligent  action?  Doubt- 
less there  was  need  for  some  wise  conservation  all 
along  the  stream,  but  these  bills  provided  nothing  of 
the  kind,  and  the  \'oters  cannot  be  blamed  for  failure 
to  act  intelligently,  because  no  opportunity  for  intelli- 
gent action  was  afforded.  That,  however,  is  scarcely 
an  argument  for  the  initiative. 

The  University  of  Oregon,  of  which  I  have  been 
a  regent  for  several  years,  has  a  small  endowment 
which  brings  in  a  revenue  of  about  $25,000  a  year. 
Prior  to  1907  it  received  appropriations  at  each  bien- 
nial session  of  the  legislature.  In  the  session  of  Janu- 
ary, 1905,  the  legislature  appropriated  for  the  univer- 
sity $62,500  a  year  for  two  years.  A  referendum  peti- 
tion was  filed  within  ninety  days  after  the  legislature 
adjourned,  and  the  vote  on  this  referendum  could  not 
be  had  until  June,  1906,  the  next  regular  election, 
nearly  a  year  and  a  half  after  the  appropriation  was 
made.  During  that  time  the  moneys  of  the  university 
l)ecame  exhausted  and  it  would  have  been  compelled 
to  close  its  doors  had  not  the  professors  agreed  to  con- 
tinue their  duties  and  to  receive  no  pay  if  the  referen- 
dum was  successful.  Fortunately  there  was  a  small 
majority  in  favor  of  the  appropriation. 

Two  years  later,  in  the  session  of  January.  1907, 
the  legislature  gave  the  state  university  a  continuing; 
appropriation  of  $125,000  a  year.  Again  a  referen- 
dum petition  was  filed  against  this  appropriation,  with 
a  similar  result.  The  moneys  again  were  exhausted  and 
the  professors  again  agreed  to  receive  no  pay  if  the 

287 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

referendum  was  successful.  The  vote  was  taken  in 
June,  1908,  nearly  a  year  and  a  half  after  the  bill 
passed  the  legislature.  Out  of  a  total  vote  of  105,298 
at  that  election  there  was  a  total  vote  on  the  referen- 
dum of  84,650,  divided  thus : 

For  the  appropriation 44>i  15 

Against  the  appropriation 40. 535 

Majority  of  votes  cast  on  proposition 3.580 

Percentage  of  voters  not  concerned  with  fate  of  the  state 

university 19.6 

The  vote  cast  against  the  appropriations  for  Ore- 
gon's state  university  may  have  been  intelligent  but 
it  is  not  educational,  except  as  an  argument  against 
the  indiscriminate  use  of  the  referendum. 

In  1908  a  single-tax  amendment  to  the  constitution 
was  presented  to  the  voters.  It  declared  in  the  title 
for  wholesale  exemptions,  and  the  opening  statement 
in  the  affirmative  argument  filed  with  the  secretary  of 
state  read,  "  the  proposed  amendment  is  a  step  in 
the  direction  of  the  single  tax."  This  amendment  was 
decisively  rejected  by  the  following  vote : 

For  the  amendment 32,066 

Against  the  amendment 60,871 

Majority  against  adoption 28,805 

Percentage  of  total  vote  cast  recorded  against  amendment.  57-7 

The  single-tax  advocates  were  persistent  and  in 
1 910  submitted  three  single-tax  amendments  by  initia- 
tive petition.  Two  were  barely  defeated,  the  vote  on 
them  being  so  light  that  less  than  thirty-six  per  cent, 
of  the  vote  for  governor  would  have  carried  them. 
The  third  amendment  was  carried.     It  was  worded 

288 


UNFAVORABLE   RESULTS   IN   OREGON 

more  attractively  than  the  one  rejected  in  1908.  the 
opening  sentence  stating  that  "  no  poll  or  head  tax 
shall  be  levied  or  collected  in  Oregon,"  and  not  one 
word  was  said  about  the  single  tax  in  the  affirmative 
argument  which  emphasized  the  injustice  of  the  poll 
tax,  and  held  out  the  promise  that :  "  the  approval  of 
these  amendments  will  give  to  the  plain  people  and  the 
taxpayers  of  Oregon  more  bread  and  butter  profits 
from  the  government  than  they  have  ever  had  in  the 
past."  What  did  this  mean?  Was  it  an  appeal  to  in- 
telligence? 

The  vote  on  this  amendment  stood : 

For  the  amendment 44ii7i 

Against 42 , 1 27 

Preponderance  of  votes  for 2 ,044 

Total  vote  cast  for  governor 1 17,690 

Thus  37.53  per  cent,  of  the  voters  of  Oregon  ap- 
proved in  1 9 10  a  measure,  which,  in  its  true  guise,  had 
been  defeated  only  two  years  before  by  a  clear  ma- 
jority.    Was  this  intelligent  action? 

One  of  the  proposed  constitutional  amendments 
in  1 910  provided  for  the  purchase,  condemnation  or 
construction,  and  operation  of  railroads  by  the  state. 
The  idea  of  a  state  of  Oregon's  limited  development 
and  revenues  attempting  such  a  thing  is  on  its  face 
absurd,  but  the  following  vote  shows  how  near  the 
half-baked  ideas  of  some  crank  came  to  receiving  au- 
thority : 

For  the  amendment 34.oi3 

Against  the  amendment 46,1 12 

289 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

In  other  words,  if  39.25  per  cent,  of  all  voters  had 
voted  for  this  amendment  the  state  would  have  been 
authorized  to  engage  in  the  railroad  business. 

In  1908  a  constitutional  amendment  was  submit- 
ted increasing  the  number  of  supreme  court  judges 
from  three  to  five,  and  simplifying  procedure  in  the 
lower  courts  by  giving  circuit  courts  original  jurisdic- 
tion of  probate  matters,  then  exercised  by  county 
courts.  This  excellent  amendment  was  defeated.  At 
the  1910  election  a  most  remarkable  amendment,  em- 
bodying all  and  more  than  was  contained  in  the  de- 
feated amendment,  was  proposed  and  adopted.  It 
placed  no  limit  on  the  number  of  supreme  court  judges 
but  provided  that  lower  courts  and  their  jurisdictions 
might  be  changed  by  law,  and  stated  prominently  in 
the  title  that  in  civil  cases  three- fourths  of  a  jury 
might  render  a  verdict. 

The  most  objectionable  features  of  this  amendment 
are  in  section  3,  which  is  as  follows : 

''  Section  3.  In  actions  at  law,  where  the  value  in 
controversy  shall  exceed  $20,  the  right  of  trial  by  jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  reexamined  in  any  court  of  this  State, 
unless  the  Court  can  affirmatively  say  there  is  no  evi- 
dence to  support  the  verdict.  Until  otherwise  pro- 
vided by  law,  upon  appeal  of  any  case  to  the  Supreme 
Court,  either  party  may  have  attached  to  the  bill  of 
exceptions  the  whole  testimony,  the  instructions  of  the 
Court  to  the  jury,  and  any  other  matter  material  to  the 
decision  of  the  appeal.    If  the  Supreme  Court  shall  be 

290 


UNFAVORABLE   RESULTS   IN   OREGON 

of  opinion,  after  consideration  of  all  the  matters  thus 
submitted,  that  the  judgment  of  the  Court  appealed 
from  was  such  as  should  have  been  rendered  in  the 
case,  such  judgment  shall  be  affirmed,  notwithstanding- 
any  error  committed  during  the  trial;  or  if,  in  any  re- 
spect, the  judgment  appealed  from  should  be  changed, 
and  the  Supreme  Court  shall  be  of  opinion  that  it  can 
determine  what  judgment  should  have  been  entered  in 
the  court  below,  it  shall  direct  such  judgment  to  be  en- 
tered in  the  same  manner  and  with  like  effect  as  de- 
crees are  now  entered  in  equity  cases  on  appeal  to  the 
Supreme  Court,  provided  that  nothing  in  this  section 
shall  be  construed  to  authorize  the  Supreme  Court  to 
find  the  defendant  in  a  criminal  case  guilty  of  an  of- 
fense for  which  a  greater  penalty  is  provided  than  that 
of  ivhich  the  accused  zvas  convicted  in  the  loiver  court." 
It  will  be  seen  that  there  is  apparently  a  conflict 
between  the  provisions  of  the  first  sentence  of  section 
3,  relating  to  the  effect  of  a  verdict  by  a  jury  in  an 
action  at  law,  and  the  power  and  duty  of  the  supreme 
court  on  an  appeal  when  there  is  attached  to  the  bill  of 
exceptions  by  appellant  or  respondent,  "  the  whole  tes- 
timony, the  instructions  of  the  court  to  the  jury,  and 
any  other  matter  material  to  the  decision  of  the  ap- 
peal." Under  the  familiar  rule  of  construction  that 
where,  in  a  statute,  there  are  apparently  conflicting 
provisions  they  must  be  reconciled  if  it  is  possible  to 
do  so,  section  3  should  be  construed  to  mean  that  the 
verdict  of  a  jury  cannot  be  reexamined  by  any  court 
inferior  to  the  supreme  court,  and  only  by  the  latter 

291 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

wlien  the  whole  record  is  before  it.  Thus  a  circuit 
court  cannot  grant  a  new  trial  if  there  be  a  verdict  of 
a  jury  with  a  scintilla  of  evidence  to  support  it,  even 
when  such  a  verdict  is  outrageous  or  given  under 
prejudice  or  passion ;  probably,  not  on  account  of 
newly  discovered  evidence.  Once  a  verdict  always  a 
verdict  until  it  reaches  the  supreme  court. 

The  appeal  provided  for  in  section  3  applies  to 
both  civil  and  criminal  cases.  The  words  are :  "  Upon 
appeal  of  any  case  to  the  supreme  court  "  the  provi- 
sions apply,  and  what  are  the  provisions?  Either  the 
appellant  or  respondent  may  (and  certainly  the  appel- 
lant always  will)  "  have  attached  to  the  bill  of  excep- 
tion the  whole  testimony,  the  instructions  of  the  court 
to  the  jury,  and  any  other  matter  material  to  the  de- 
cision of  the  appeal."  The  verdict  of  the  jury  in  the 
court  below  is  not  necessarily  even  a  guide  to  the  su- 
preme court,  which  must  be  guided  by  "  the  whole 
testimony,  the  instructions  of  the  court  to  the  jury," 
and  also  "  any  other  matter  "  that  either  the  appellant 
or  respondent  may  deem  "  material  to  the  decision  of 
the  appeal."  Judgment  may  be  entered  "  after  a  con- 
sideration of  all  the  matters  thus  submitted."  If  the 
supreme  court  decides  for  the  respondent,  it  may  do 
so  not  only,  "  notwithstanding  any  error  committed 
during  the  trial  "  in  the  court  below,  but  also  it  must 
consider  whether  the  judgment  "  was  such  as  should 
have  been  rendered  in  the  court  below,"  after  a  review 
of  the  whole  testimony  and  also  after  considering 
"  other  matters  "  in  the  record.    There  may  be  similar 

292 


UNFAVORABLE  RESULTS  IN  OREGON 

action  by  the  supreme  court  in  favor  of  the  appellant 
if  "  it  shall  be  of  the  opinion  that  it  can  determine  what 
judgment  should  have  been  entered  in  the  court  be- 
low." By  this  method  of  appeal  is  not  trial  by  jury 
practically  abolished  in  Oregon?  And  yet  trial  by  jury 
has  been  in  existence  in  English-speaking  countries 
from  the  time  of  Anglo-Saxon  rule  in  England  until 
the  present  day. 

This  amendment  makes  no  provision  for  sending 
the  case  back  to  the  lower  court  for  re-trial.  Its  ap- 
parent object  is  to  authorize  the  supreme  court  to 
determine  finally  every  law  case  appealed  and  also 
criminal  cases,  and  to  direct  what  judgment  shall 
be  entered  in  the  court  below.  But  also  appar- 
ently it  gives  the  supreme  court  power  to  dispense 
a  kind  of  crude  oriental  justice  according  to  its 
"  opinion." 

Now  note  this  additional  confusion.  Section  3  per- 
mits change  by  law  of  the  pow-ers  conferred  by  it  on 
the  supreme  court,  as  to  determination  of  what  judg- 
ments shall  be  entered  in  civil  or  criminal  cases,  but 
no  law  can  change  the  first  sentence  of  section  3.  Only 
a  constitutional  amendment  can  affect  that.  Take  the 
power  from  the  supreme  court  to  set  aside  a  verdict 
and  render  a  judgment,  and  a  verdict  once  given,  how- 
ever unjust  or  unfair,  cannot  be  reexamined  1)\-  any 
court.  For  centuries  the  jury  has  been  a  check  on 
the  tyranny  and  corruption  of  judges.  Upright  judges 
have  corrected  the  verdicts  of  ignorant,  prejudiced  and 
venal  juries.     To  do  away  with  this  balance  of  ])o\ver 

293 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

is  to  set  aside  the  best  safeguards  for  justice  which 
man  has  been  able  to  devise. 

The  first  sentence  of  section  3  makes  it  appear  that 
this  section  apphes  to  civil  cases  only,  but  the  rest  of 
the  section  applies  to  criminal  cases  also.  There  is 
no  limitation  on  the  "  appeal  of  any  case  to  the  su- 
preme court,"  but  the  limitation  is  "  provided,  that 
nothing  in  this  section  shall  be  construed  to  authorize 
the  supreme  court  to  find  the  defendant  in  a  criminal 
case  guilty  of  an  offense  for  which  a  greater  penalty 
is  provided  than  that  of  which  the  accused  was  con- 
victed in  the  lower  court." 

If  the  accused  is  convicted  in  a  lower  court  of  a 
crime  for  which  he  was  not  indicted  nor  tried,  an  ap- 
peal will  lie.  But  the  supreme  court  may  find  him 
guilty  of  an  offense,  without  indictment,  the  only  limi- 
tation being  that  it  shall  not  find  him  guilty  "  of  an 
offense  for  which  a  p-reater  penalty  is  provided  than 
that  of  which  "  he  "  was  convicted  in  the  lower  court." 
The  accused  may  be  indicted  in  the  circuit  court  for 
murder  and  convicted  of  rape  or  arson  by  the  supreme 
court ;  indicted  for  burglary,  and  convicted  on  appeal 
of  mayhem,  or  of  some  other  crime  against  which  he 
had  no  opportunity  to  make  a  defense.  Take  this 
amendment  with  its  contradictory  provisions  and  de- 
termine, if  you  can,  what  was  in  the  minds  of  its 
framers.  And  how  could  the  voters  act  intelligently 
thereon  ? 

Then  consider  the  vote  by  which  this  amendment 
was  adopted — 44,545  for,  and  39,307  against.     The 

294 


UNFAVORABLE  RESULTS  IN  OREGON 

approximate  percentages  of  those  who  voted  and  those 
who  did  not,  as  compared  with  the  votes  for  gov- 
ernor, were: 

For  the  amendment 37.85 

Against  the  amendment 33-40 

Not  voting 28.75 

And  thus  less  than  thirty-eight  per  cent,  of  the 
voters  amended  the  constitution  to  the  prejudice  of  the 
rights  of  the  other  sixty-two  per  cent.,  and  of  them- 
selves, and  imperil  one  of  the  safeguards  of  personal 
liberty.  A  leading  advocate  of  the  Oregon  plan  asked 
me  lately  why  I  let  this  amendment  be  printed  in  the 
official  pamphlet  without  an  argument  against  it.  I 
admitted  my  delinquency  and  he  voiced  a  favorite 
maxim  of  the  advocates  to  the  effect  that  I  had  no 
right  to  complain.  I  admit  that  I  failed  in  my  duty, 
but  is  that  any  reason  why  the  rights  of  sixty-two 
per  cent,  of  the  voters,  of  women  and  of  children  yet 
to  be  born,  should  be  imperiled,  and  that  a  minority 
should  rule  in  so  important  a  matter? 

Thirty-two  propositions  at  one  election,  most  of 
them  in\olving  complex  questions!  It  took  a  pamphlet 
of  202  pages,  not  including  the  index,  to  present  them, 
together  with  such  arguments  pro  and  coti  as  were 
filed.  How  many  of  you  would  have  time  to  study 
such  a  document  even  though  you  had  six  months  for 
it?  And  having  the  time  hnw  many  of  you  would  feel 
competent  to  pass  on  such  a  measure  as  the  judiciary 
amendment,  for  example?  The  Oregon  supreme  court 
has  experienced  some  difficulty  in  construing  aniend- 

29.S 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

ments  to  the  constitution  made  in  the  above  manner, 
particularly  those  adopted  under  the  initiative  in  1906 
and  intended  to  take  from  the  legislature  the  power  to 
enact,  amend  or  repeal  municipal  charters  and  giving 
this  power  to  the  voters  of  the  municipalities.  These 
amendments  failed  to  define  what  constitutes  a  char- 
ter; there  were  practically  no  precedents  and  the  su- 
preme court  found  it  necessary  to  amend  these  consti- 
tutional amendments  by  its  decisions,  by  supplying 
omissions  and  by  interpolating  provisions  not  contained 
in  the  amendments  themselves. 

But  what  becomes  of  the  sacred  right  of  the  initia- 
tive and  the  doctrine  that  the  people  are  always  right  ? 
Should  a  supreme  court  amend  or  set  aside  what  the 
people  in  their  wisdom  (or  unwisdom)  have  perpe- 
trated? So  it  has  come  to  pass  that  the  initiative 
amendments  of  the  Oregon  constitution,  adopted  to 
give  the  people  absolute  power,  do  not  really  make  the 
people  supreme,  but  do  make  the  acts  of  the  people, 
plus  the  supervision  of  the  supreme  court,  supreme. 
Certainly  to  this  extent  the  initiative  is  not  what  its  ad- 
vocates intended  it  to  be,  although  there  is  a  large 
element  of  safety  in  such  supervision  and  amendment 
by  the  supreme  court.  But  what  would  be  the  result 
if  the  supreme  court  had  held  that  the  people  had  all 
the  final  power  subject  only  to  contrary  provisions  in 
the  constitution  of  the  United  States  ? 

Briefly  to  summarize,  then,  we  find  that  the  so- 
called  "  reserve  "  power  is  greatly  abused ;  that  meas- 
ures  in   overwhelming   numbers   and   many   of   them 

296 


UNFAVORABLE   RESULTS   IN   OREGON 

loosely  drawn  are  being  put  upon  the  ballot;  that  the 
percentage  of  those  who  do  not  participate  in  direct 
legislation  is  increasing;  that  lack  of  intelligent  grasp 
of  many  measures  is  clearly  indicated ;  that  legislation 
is  being  enacted  by  minorities  to  the  prejudice  of  the 
best  interests  of  the  majority;  and  that  the  constitu- 
tion itself  is  being  freely  changed  with  reckless  disre- 
gard of  its  purpose  and  character. 


20 


THE  RECALL 
CHAPTER  XII 

THE  USE  OF  THE  RECALL  IN  THE  UNITED  STATES.^ 

The  recall  expresses  the  idea  that  a  public  ofifice  is 
so  vitally  affected  with  the  public  interest  that  when 
its  occupant  ceases  to  perform  his  duties  to  the  inter- 
ests of  the  community  his  official  tenure  may  be  ter- 
minated. The  recall  is  based  on  the  theory  that  the  peo- 
ple must  maintain  a  more  direct  and  elastic  control  over 
their  elective  officials,  or,  to  use  a  homely  Oregonian 
phrase,  that  the  people  should  be  able  to  discharge 
their  public  servants  "  just  as  a  farmer  discharges  his 

hired  men."  ^ 

■ 1 

»Mr.  Herbert  S.  Swan  of  Columbia  University,  the  author  of 
this  chapter,  is  one  of  the  committee  investigators  of  the  National 
League. 

«  Contrary  to  popular  belief  the  recall  did  not  have  its  origin  in 
Los  Angeles  in  1903.  It  was  first  embodied  in  the  Articles  of  Con- 
federation which  reserved  to  the  individual  states  the  right  of  recall- 
ing any  or  all  of  their  delegates  to  Congress  and  of  sending  others 
in  their  stead.  Although  both  Madison  and  Yates  are  silent  in  their 
reports  concerning  it,  the  recall  no  doubt  was  thoroughly  discussed 
in  the  Federal  Convention  especially  in  regard  to  the  recall  of  sena- 
tors.    Luther  Martin  in  his  "Genuine  Information"  to  the  Mary- 

298 


USE  OF  THE   RECALL 

A  man  who  breaks  a  contract  or  who  deceives  his 
cHents  by  making  false  pretenses  is  severely  punish- 
able by  our  laws.  But  electorates  may  be  wheedled 
and  seduced,  the  public  troth  most  atrociously  outraged 
by  insidious  officeholders — all  without  redress,  so  long 
as  no  technical  crime  has  been  committed.  Impeach- 
ment reaches  only  malfeasance,  not  misfeasance  or 
non-feasance.  There  is  a  borderland  outside  of  actual 
graft  which  the  law  of  impeachment  does  not  touch. 
Our  statutes,  as  a  rule,  are  not  so  framed  as  to  cover 
the  George  Washington  Plunkitt  variety  of  "  honest 
graft."  In  instances  of  this  sort  the  courts  are  power- 
less. 

An  English  cynic  once  suggested  that  since  moral 
perversity  seemed  to  be  the  legislator's  only  infallibil- 
ity, good  go\ernment  might  be  readily  achieved  by  in- 
verting the  laws  in  their  administration.  Though  expe- 
rience may  gi\e  this  theory  more  or  less  credence,  the 
recall,  however,  is  based  upon  the  assumption  that  the 
official's  interest  can  be  conjoined  with  that  of  the  peo- 
ple's by  making  his  tenure  dependent  upon  his  con- 
stantly meriting  the  office.  What  has  annoyed  and 
thwarted  more  than  anything  else,  might  be  called  of- 
ficial aphasia.  Just  when  the  people  have  elected  a 
man  burning  with  patriotic  zeal,  he  sufifers  some  sort 


land  legislature  strongly  opposed  the  adoption  of  the  constitution 
because  it  omitted  this  feature.  Tlie  principle  also  aroused  a  long 
and  intensely  interesting  debate  in  the  New  York  Convention.  Tlie 
two  Livingstons,  John  Lansing,  and  Alexander  Hamilton  engaged 
in  the  controversy, 

299 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

of  an  intracerebral  accident.  He  is  no  longer  able  to 
interpret  vox  populi.  His  memory  fails  him.  His 
formerly  clear-cut  views  upon  public  questions  become 
confused  and  incoherent.  Party  platform  and  pre- 
election pledges  now  mean  nothing,  or,  if  they  do, 
something  very  different  from  what  they  appeared  to 
mean  a  short  time  ago.  The  ayes  and  nays  in  the  legis- 
lative journal,  when  read  in  the  glow  of  his  former 
zest  for  public  service,  appear  unintelligible,  sometimes 
villainous.  The  recall  proposes  to  aid  the  officeholder 
in  retaining  a  candidate's  state  of  mind. 

Nor  is  there  any  valid  reason  why  a  man  honestly 
elected  upon  a  platform  which  he  honestly  intends  to 
carry  out,  should  not,  under  certain  circumstances,  be 
recalled.  Even  though  the  representative's  views 
might  approximately  at  the  time  of  election  have  re- 
flected those  held  by  the  represented,  rising  contingen- 
cies might  tend  to  disturb  and  unbalance  the  intimacy 
of  this  relation.  Conditions  entirely  unforeseen  then 
might  develop  which  would  render  a  change  of  policy 
imperative.  Surely  legislators  and  councilmen  ought 
to  be  amenable  to  changing,  as  well  as  to  existing, 
public  sentiment.  The  finiteness  of  human  foresight, 
not  less  than  the  fallibility  of  the  electorate's  choice 
and  the  corruptibility  of  the  official,  argues  for  the  re- 
call in  a  popular  government. 

In  passing  upon  the  constitutionality  of  the  Iowa 
law  providing  for  city  government  by  commission  the 
court  said  in  reference  to  the  recall :  "  Public  officers 
are  created  in  the  interests  of  the  general  public,  and 

300 


USE  OF   THE   RECALL 

not  for  the  benefit  of  any  indi\i(-lual.  Ami  no  one  in 
possession  of  an  office  has  a  constitntional  right  to  re- 
main therein  for  the  full  period  of  the  term  for  which 
he  was  elected.  ...  As  no  contract  right  exists 
in  favor  of  the  incumbent  of  an  office  it  does  not  re- 
main for  him  to  (|uarrel  with  the  method  of  procedure 
adopted  in  removal  from  office." 

The  recall  is  perhaps  most  valuable  as  a  potential 
club  to  wield  over  recalcitrant  officials.  Without  it, 
public  opinion,  no  matter  how  well  it  may  be  organ- 
ized, loses  one  of  its  most  potent  weapons  with  which 
to  inspire  honest  and  efficient  government.  An  inde- 
terminate tenure  of  office,  for  such  the  recall  may  be 
said  to  conduce,  places  a  premium  upon  good  service. 
Disrespect  or  indifference  to  the  public  will  may  be 
punished  by  a  summary  ejectment  from  office.  A  def- 
inite term  doubtlessly  makes  the  councilman  more  in- 
imical to  crystallized  public  opinion.  He  may,  or  may 
not,  give  it  speedy  expression  in  the  enactment  of  de- 
sired ordinances.  In  either  case  he  feels  tolerably 
secure  of  his  seat. 

Threatenine:  the  use  of  the  recall  has  on  several 
occasions  caused  councilmen  to  abandon  measures  ob- 
jectionable to  their  constituents.  A  case  in  point  is 
where  the  Los  Angeles  aldermen  rescinded  an  im- 
mensely valuable  franchise  in  a  river  bed  in  that  city. 
Another  instance  illustrating  its  worth  in  this  respect 
occurred  in  Des  Moines.  "  When  the  matter  of  ap- 
pointing police  marshal  came  up,  three  of  the  council 
voted  for  a  man  who  had  worked  to  secure  their  elec- 

301 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

tion.  The  appointment  was  opposed  by  two  of  the 
cotincihnen,  one  of  whom  had  charge  of  the  depart- 
ment of  pnblic  safety.  Unwittingly  one  of  the  three 
above  mentioned  who  voted  for  this  appointment 
dropped  some  remark  which  led  the  pubHc  to  beheve 
there  had  been  a  promise  made  before  election.  This 
suspicion  was  furthered  by  the  fact  that  the  council- 
man in  charge  of  the  department  of  public  safety  op- 
posed the  appointment.  A  petition  for  a  recall  of  the 
councilman  making  the  unfortunate  remark  was  at 
once  started.  Before  this  reached  the  council,  how- 
ever, that  body  had  had  a  meeting  and  quickly  revoked 
the  appointment  and  appointed  a  police  marshal  who 
had  public  favor." 

The  charge  urged  against  the  recall  that  it  may 
be  invoked  to  displace  conscientious  officials  is  not  to 
be  given  much  weight  if  proper  precautions  are  taken 
in  fixing  the  percentage  required  on  the  recall  petition 
sufficiently  high  so  as  to  remove  the  officeholder  from 
factional  spite.  The  malignant  and  wanton  exercise 
of  the  recall  in  displacing  or  harassing  conscientious 
officials  would  so  arouse  the  public  condemnation  that 
the  measure  could  not  help  falling  through.  This, 
moreover,  has  been  the  actual  experience  of  the  recall. 
In  Fort  Worth,  Texas,  an  attempt  was  made  to  re- 
move a  commissioner  who  had  enforced  the  law  in  the 
"  red  light  "  district.  The  law-abiding  people  unani- 
mously rallied  to  his  support,  and  his  enemies  failed 
to  obtain  the  necessary  per  cent,  petition  to  force  him 
to  stand  for  reelection.     When  the  police  superintend- 

302 


USE  OF  THE   RECALL 

ent  of  Des  Moines,  Iowa,  suppressed  gambling,  repre- 
sentatives of  that  interest  visited  him  at  his  office  and 
told  him  that  if  he  did  not  permit  the  reinstalhnent 
of  slot  machines  a  recall  would  be  started  to  remove 
him.  The  superintendent  immediately  had  the  inci- 
dent printed  in  the  newspapers  and  the  recall  did  not 
materialize. 

In  San  Bernardino,  California, two  councilmen  who 
voted  for  letting  the  public  advertising  to  a  firm  not 
the  lowest  bidder  were  summarily  ousted  by  their  con- 
stituents. In  San  Diego,  a  councilman,  whose  conduct 
"  ever  since  he  entered  upon  the  'duties  of  said  office 
had  been  in  opposition  to  the  will  and  preference  of 
his  constituents,  and  obstructive  to  the  best  interests 
of  the  city,"  came  within  an  ace  of  being  recalled.  He 
was  spared  the  disgrace  only  by  resorting  to  the  courts 
which  delayed  the  proceedings  until  his  term  expired. 
The  recall  was  exercised  against  a  councilman  in  Ever- 
ett, Washington,  who  was  "  using  the  influence  of  his 
position  to  revive  a  certain  franchise  to  the  prejudice 
of  the  city."  In  Los  Angeles,  Mayor  Harper  was  re- 
called a  little  over  a  year  ago  for  failing  to  enforce 
the  law  against  gambling,  prostitution,  and  the  sale  of 
liquor.  In  Oregon  the  recall  has  been  used  twice. 
All  the  elective  city  officials  except  one,  the  recorder, 
were  removed  a  year  ago  last  spring  at  Estacada.  The 
charge  made  was  gross  mismanagement  of  the  city 
business.  At  Junction  City  the  mayor  had  a  few  weeks 
earlier  been  recalled  by  a  vote  of  four  to  one.  Last  fall 
two  school  directors  were  recalled  in  Dallas,  Texas, 

303 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

on  the  ground  of  discharging  teachers  and  appointing 
others  in  their  stead  because  of  poHtical  motives.  Only 
recently  the  mayors  of  Seattle  and  Tacoma,  Washing- 
ton, have  been  recalled.  In  the  former  city,  it  was 
alleged  that  the  executive  failed  to  enforce  the  police 
laws  "permitting  the  city  to  become  a  home  and  ref- 
uge for  the  criminal  classes  " ;  in  the  latter,  the  cause 
of  recall  was  found  in  general  inefficiency  and  gross 
mismanagement  of  public  business. 

There  ought,  perhaps,  to  be  an  initial  period  of 
some  two  or  three  months  during  which  a  newly 
elected  commissioner  should  be  immune  from  the  lia- 
bility of  recall.  This  would  not  only  give  a  council- 
man a  chance  to  outline  his  policies,  but  would  also 
give  time  for  the  partisan  ill-feeling  aroused  during 
the  campaign  to  cool.  But  the  entire  history  of  Amer- 
ican politics  precludes  scoring  any  point  for  the  short 
time  exemption  on  the  latter  ground.  Politically  our 
candidates  are  game  losers.  To  bolt  the  party  ticket, 
no  matter  what  the  merits  or  demerits  of  the  case,  has 
universally  been  regarded  as  a  cardinal  sin.  The  mug- 
wump has  always  been  ostracised.  No  doubt  custom 
would  execrate  the  would-be-post-election  guerilla, 
who  has  just  been  disappointed  in  his  office-seeking 
hopes,  as  a  most  abominable  enemy  to  the  people. 

In  most  cities  a  recall  may  be  effected  at  any  time 
during  the  officer's  term.  Yet  in  several  instances  it 
is  provided  that  no  proceedings  may  be  brought 
against  an  incumbent  during  the  first  three  or  six 
months.    In  Boston,  where  the  mayor  now  holds  office 

304 


USE  OF  THE  RECALL 

for  four  years,  a  recall  may  only  be  had  after  two 
years  by  the  majority  of  the  voters.  St.  Joseph  al- 
lows no  such  election  to  be  held  "  within  three  months 
after  the  election  and  qualification  of  any  city  officer, 
nor  within  three  months  prior  to  the  expiration  of  his 
term  of  office."  Instead  of  prohibiting  proceedings 
aeainst  an  officer  near  the  end  of  the  term  thus,  some 
charters  permit  the  council  discretion  to  refuse  action 
if  a  general  election  occurs  within  sixty  days.  Lewis- 
ton,  Idaho,  is  the  only  city  that  expressly  denies  the 
filing  of  more  than  one  petition  during  an  officer's  term. 
In  Oregon  no  petition  may  be  circulated  against  any 
state  officer  "  until  he  has  actually  held  his  office  six 
months,  save  and  except  that  it  may  be  filed  against  a 
senator  or  representative  in  the  legislative  assembly  at 
any  time  after  five  days  from  the  beginning  of  the  first 
session  after  his  election.^  After  one  such  petition  and 
special  election  no  further  recall  petition  shall  be  filed 
against  the  same  officer  during  the  term  for  which  he 
was  elected  unless  such  further  petitioners  shall  first 
pay  into  the  public  treasury  which  has  paid  such  special 
election  expenses,  the  whole  amount  of  its  expenses  for 
the  preceding  special  election." 

To  absolutely  prohibit  proceedings  several  months 
prior  to  the  term's  end  tends  to  make  the  recall  nuga- 


1  The  recall  in  Oregon  applies  also  to  the  judiciary.     The  Arizona 
constitution  is  modelled  after  that  of  Oregon  in  this  respect.     Cali- 
fornia will  in  October  vote  on  a  constitutional  amendment  extending 
the  recall  to  every  department  in  the  state  government  including  the  ■ 
judiciary. 

.105 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

tory  in  remedying  the  evils  for  wliich  it  is  instituted. 
This  objection  apphes  still  more  emphatically  to  the 
Lewiston  charter,  which  specifically  limits  an  officer's 
liability  to  one  time.  The  discretion  resided  in  the 
council  as  to  the  warrantableness  of  such  drastic  action 
ought  to  be  made  so  elastic  as  to  empower  that  body 
to  refuse  relief  if  a  general  election  is  only  a  short  time 
distant. 

So  long  as  the  voter  may  not  at  any  time  recall  his 
chosen  representatives  his  franchise  is  only  a  remnant. 
The  right  to  elect  and  the  right  to  recall — each  comple- 
ments the  other.  A  full  and  complete  electoral  fran- 
chise includes  both.  A  suffrage  embracing  one  but  not 
the  other  is  fragmentary  and  only  putatively  demo- 
cratic. The  recall  will  lend  some  purpose  to  political 
discussion.  At  present  it  is  insipid,  meaningless.  Men 
regularly  go  in  and  out  of  office  by  fixed  batches — 
their  tenure,  instead  of  bearing  any  relation  to  dynamic 
political  conditions,  is,  in  the  words  of  Bagehot,  "  rigid, 
specified,  dated."  Nothing  can  be  accelerated,  nothing 
retarded.  What  business  is  there  at  present  in  atten- 
tion to  politics? 

There  is  little  danger  of  the  recall  being  used  too 
often.  As  Mr.  Davis  has  indicated  in  the  Proceedings 
of  the  National  Municipal  League  for  1906,  it  is  far 
easier  to  get  a  man  to  sign  a  petition  for  than  against 
a  person.^  And  there  is  need  to  be  wary.  In  signing 
a  petition  making  untruthful  charges,  the  elector  ren- 


>  See  below  p.  317. 
306 


USE  OF  THE   RECALL 

ders  himself  susceptible  to  a  criminal  libel  suit.  The 
experience  in  Los  Angeles  has  been  that  more  than 
t\vice  as  many  people  are  willing-  to  vote  for  removal 
of  an  officer  when  it  comes  to  the  recall  election  than 
are  willing  to  sign  the  petition.  The  percentage  of 
.signatures  required  on  the  petition  should  therefore 
not  be  too  high — twenty-five  per  cent,  being  in  all  or- 
dinary conditions  adequate.  Thirty-five,  forty  per  cent, 
clearly  annuls  its  use. 

The  percentage  of  signatures  required  on  the  peti- 
tion is  twenty  in  St.  Joseph,  Fort  Worth,  Grand  Junc- 
tion and  Berkeley ;  twenty-five  in  Iowa,  Kansas,  Ore- 
gon, Austin,  Texas,  and  Lewiston,  Idaho ;  thirty  m 
Colorado  Springs ;  and  thirty-five  in  Dallas,  Texas,  and 
Tulsa,  Oklahoma.  In  some  of  the  non-commission 
cities  in  California  it  rises  as  high  as  forty,  fifty-one 
and  even  sixty  per  cent.  The  sagacious  statesmen  in 
the  Illinois  legislature  last  year  fixed  the  percentage 
for  that  state  at  seventy-five.  The  basis  on  which  the 
percentage  is  reckoned  varies  greatly  in  the  different 
cities.  In  Los  Angeles  the  standard  taken  is  "  the  vote 
cast  for  all  candidates  for  the  office  at  the  last  general 
city  election."  In  Iowa,  it  is  "  the  entire  vote  for  all 
candidates  for  the  office  of  mayor  at  the  last  preceding 
general  municipal  election  ";  in  Fort  Worth,  "the  en- 
tire number  of  persons  entitled  to  vole  in  said  city  at 
said  time";  in  Grand  Junction,  "the  last  preceding 
vote  cast  for  all  the  candidates  for  governor  of  the 
state  of  Colorado  by  the  electors  of  the  city  " ;  in  Bos- 
ton, "  a  majority  of  the  qualified  voters  registered  in 

307 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

said  city  for  state  election  "  ;  in  Oregon.  "  the  electors 
who  voted  in  his  district  at  the  preceding  election  for 
justice  of  the  supreme  court." 

If  the  office  which  usually  receives  the  least  total 
vote  be  taken  as  the  basis  for  the  recall  petition,  the 
same  result  is  arrived  at  as  if  a  low  percentage  of  sig- 
natures were  required  in  order  to  effect  a  recall.  The 
fairest  test  Avould  probably  be  the  total  number  of 
votes  cast  for  the  office  in  each  particular  instance. 
But  whatever  office  be  taken  as  a  standard,  the  recall 
should  in  the  election  of  that  one  incumbent  encourage 
a  very  heavy  poll  because  e\'ery  "  stay-at-home  "  vote 
in  that  one  election  would  potentially  depreciate  and 
jeopardize  the  permanence  of  all  other  official  tenures 
by  just  so  much  facilitating  a  possible  recall  in  the 
future.  If  the  basis  for  the  recall  petition  for  each  of- 
fice, however,  be  its  own  total  vote  at  the  last  preced- 
ing election,  then,  theoretically,  all  offices  ought  uni- 
formly to  poll  a  heavy  vote. 

Generally,  only  one  election  is  sufficient  to  decide 
whether  the  incumbent  is  to  continue  in  office,  and,  if 
he  is  removed,  who  is  to  succeed  him.  But  in  some 
cities,  of  which  Dallas,  Texas,  Tulsa,  Oklahoma,  and 
Tacoma,  W^ashington,  are  instances,  something  similar 
to  the  French  ballotage  and  identical  with  the  German 
cngcre  Wahl  has  been  adopted — that  is,  if  more  than 
two  candidates  run  for  an  office  and  none  receives  an 
absolute  majority  of  all  the  votes  cast,  then  this  elec- 
tion serves  only  as  a  primary  to  a  supplementary  elec- 
tion in  which  only  two  candidates,  the  ones  receiving 

308 


USE  OF  THE   RECALL 

the  highest  and  second  highest  nuniher  of  votes  at  the 
primary,  are  the  competitors. 

When  Tacoma,  Washington,  recalled  her  mayor, 
last  spring,  there  were  in  addition  to  the  officeholding 
mayor  two  other  candidates  for  the  office.  Though 
sixty-two  per  cent,  of  the  voters  in  this  first  election 
indicated  that  they  desired  a  change  in  the  mayoralty, 
they  were  not  unanimous  in  their  choice  as  to  the  in- 
cumbent's successor,  forty-five  per  cent,  voting  for  one 
candidate  and  seventeen  per  cent,  for  another.  Even 
though  Mayor  Fawcett  had  obviously  lost  the  public 
confidence,  since  he  received  only  thirty-eight  per  cent, 
of  the  total  vote  polled,  he  was  permitted  through  this 
proviso  in  the  Tacoma  recall  to  stand  for  still  another 
election,  the  first  being  now  considered  merely  a  pri- 
mary. The  people,  however,  again  repudiated  him, 
and  elected  his  opponent. 

Aside  from  these  few  cities,  the  people  are  spared 
and  expense  of  a  second  election  since  a  plurality  is  all 
that  is  needed  to  elect  a  successor  to  the  one  recalled. 
To  this  there  is  but  one  exception,  that  of  Austin, 
Texas.  There  a  practice  more  peculiar  than  the  one 
just  described  exists — a  practice  no  doubt  devised  by 
designing  politicians  in  order  to  bring  the  recall  into 
great  disfavor,  if  not  to  render  it  altogether  inopera- 
tive. In  Austin  the  bare  issue  of  recall  is  first  pre- 
sented to  the  people  at  a  special  election  when  it  has 
been  so  petitioned  by  the  necessary  percentage  of 
voters.  If  they  decide  in  favor  of  a  recall  at  this  elec- 
tion, the  office  is  summarily  declared  vacant  and  the 

309 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

incumbent  is  forbidden  to  be  a  candidate  to  succeed 
himself.  His  successor  is  then  selected  by  the  method 
used  in  Tacoma.  The  clumsiness  of  the  Austin  char- 
ter necessitates  never  less  than  two  elections,  and 
sometimes,  when  an  absolute  majority  of  the  voters 
are  disunited  and  refuse  to  support  some  one  candi- 
date, three  elections  are  necessary  in  order  to  recall 
an  official. 

The  successor  to  the  one  removed  usually  holds 
office  only  during  the  unexpired  term.  Boston  is  the 
sole  exception  to  this  rule.  There,  at  the  general  state 
election  in  the  second  year  of  the  mayor's  term,  the 
question  is  submitted  to  the  voters  whether  they  wish 
a  new  election  for  mayor  to  be  held  at  the  city  elec- 
tion in  the  following  January.  If  a  majority  of  the 
registered  voters  answer  this  question  in  the  affirma- 
tive, such  an  election  is  held.  If  a  new  election  is 
held,  it  is  for  a  four-year  term,  with  a  similar  power 
of  recall  in  the  second  year.  Cases  where  the  recalled 
officer  is  afterwards  publicly  discriminated  against  are 
not  altogether  wanting.  Berkeley,  California,  was  the 
first  to  prohibit  one  who  has  been  removed,  or  who  has 
resigned  while  such  proceedings  were  pending  against 
him,  from  being  appointed  to  any  office  within  one 
year.  Other  cities,  such  as  Grand  Junction  and  Colo- 
rado Springs,  Colorado,  have  copied  this  provision  into 
their  charters  word  by  word. 

The  city  clerk  is  almost  without  exception  allowed 
extra  help  by  the  council  in  examining  the  validity  of 
the  signatures.    The  charter  of  Lewiston,  Idaho,  some- 

310 


USE  OF  THE   RECALL 

what  differently  from  the  Oregon  law,  provides,  how- 
ever, that  such  extra  help,  not  exceeding-  in  cost  the 
sum  of  one  hundred  dollars  is  to  be  paid  by  the  peti- 
tioners who  shall  deposit  the  sum  necessary  with  the 
city  clerk  at  the  time  of  filing  the  petition.  Any  sur- 
plus in  the  amount  deposited  over  and  above  the  ex- 
pense incurred  shall  be  returned  to  the  persons  by 
whom  the  same  was  deposited.  With  this  exception, 
and  all  elections  held  against  an  official  in  Oregon  sub- 
sequent to  the  initial  one,  the  cost  incident  to  the  re- 
call election  is  made  a  public  charge. 

The  strongest  case  against  the  recall  is,  perhaps, 
its  expensiveness.  In  a  large  city  the  size  of  New 
York  or  Cliicago,  it  probably  would  be  prohibitory.  In 
Los  Angeles  the  cost  incurred  through  its  exercise  is 
said  to  have  been  nine  thousand  dollars,  a  sum  the  Cal- 
ifornians  considered  a  mere  bagatelle  compared  to  the 
benefits  derived  from  its  exercise.  The  wisdom  of 
having  the  petitioners  stand  the  cost  of  certifying  and 
verifying  the  signatures  as  in  Lcwiston,  Idaho,  is  open 
to  serious  doubt.  In  some  states  it  certainly  would  be 
held  unconstitutional  for  being  a  new  and  additional 
qualification  for  the  exercise  of  the  suffrage.  It  vir- 
tually constitutes  a  property  qualification  upon  the 
right  to  vote. 

The  recall  is  of  special  significance,  since  if  it 
pro\e  practical)le,  and  this  its  limited  experience  seems 
to  promise,  it  may  beconu'  tlic  means  of  a  most  salu- 
tary improvement  in  municipal  go\'ernmcnt — the 
lengthening  of  the  term  for  elective  officials.     Its  in- 

3" 


THE   INITIATIVE,   REFERENDUM   AND   RECALL 

corporation  into  city  charters  has  already  shown  a 
movement  in  this  direction.  Berkeley  and  San  Diego, 
California,  Colorado  Springs  and  Grand  Junction,  Col- 
orado, have  extended  the  term  of  the  councilmen,  or 
commissioners,  to  four  years.  Illinois,  also,  provides  a 
four-year  term ;  South  Dakota  a  term  of  five  years. 
Where  the  recall  has  been  introduced  it  seems  to  be 
expected  that  public  opinion  will  supersede  the  need  of 
actual  voting.  There  can  be  no  doubt  that  all  super- 
fluous elections,  and  hence  all  needlessly  short  terms 
of  office,  complicate  politics  and  weary  the  elector. 


CHAPTER  XIII 

THE  RECALL  AS  A  MEASURE  OF  POPULAR  CONTROL 

In  an  address  at  the  Atlantic  City  meeting  (1906) 
of  the  National  Municipal  League  Thomas  A.  Davis 
contributed  this  discussion. 

Before  election  candidates  as  a  usual  thing  are  pro- 
fuse with  promises,  but  it  is  remarkable  how  cjuickly 
after  being  elected  these  promises  are  forgotten  and 
how  the  wishes  of  the  people  are  thrown  to  the  winds. 
Instead  of  conducting  municipal,  county  and  state  gov- 
ernments for  the  people,  in  many  cases  we  are  forced  to 
the  conclusion  that  the  members  of  these  public  bodies 
elected  by  the  people  even  sit  there  as  the  paid  repre- 
sentatives of  private  interests,  while  the  public  treasury 
is  looked  upon  as  the  proper  thing  to  be  robbed  and 
plundered. 

As  a  usual  thing  candidates  are  elected  or  appointed 
to  public  office  for  terms  ranging  from  one  to  five 
years.  After  they  have  been  inducted  into  the  office, 
no  matter  how  shameful  or  degrading  their  conduct 
may  be,  there  is  nr)t  at  the  ])resent  time  any  adequate 
manner  in  which  the  juiblic  can  call  to  account  an  err- 
ing public  servant.     The  j)ul)]ic   servant  becomes  the 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

public  master  for  the  balance  of  his  term,  and  in  many 
cases  we  have  seen  these  acts  of  a  man  committed  dur- 
ing his  term  forgotten  when  his  term  is  about  to  ex- 
pire, and  the  person  reelected  to  the  office  with  perhaps 
an  increased  majority.  Of  course,  such  an  occurrence 
as  this  is  due  to  apathy  and  indifference  of  the  electors, 
and  so  long  as  they  are  willing  to  remain  in  that  state, 
they  probably  get  about  as  good  government  as  they 
deserve. 

If  a  man  employs  an  agent  for  a  term  of  years  by 
contract,  and  that  agent  betrays  his  principal,  the  prin- 
cipal may  terminate  the  contract  and  get  rid  of  the 
faithless  one.  Officeholders  stand  in  the  same  position 
to  the  public  as  the  agent  does  to  the  principal.  They 
are  simply  the  instruments  for  carrying  on  the  business 
of  the  public,  and  if  they  are  faithless  in  performing 
their  duties  the  law  should  provide  adequate  means 
for  getting  rid  of  them  and  putting  others  in  their 
places.  This  thought  no  doubt  has  been  in  the  minds 
of  people  for  a  long  time,  but  it  was  not  until  such 
a  method  of  procedure,  which  has  been  designated  the 
recall,  was  put  into  effect  in  Los  Angeles,  California,^ 
that  this  section  of  the  country  came  to  the  conclusion 
that  their  theories  had  materialized  in  the  Far  West, 
and  an  agitation  has  been  accordingly  started  to  con- 
sider the  advisability  of  such  a  law  in  New  Jersey. 

The  recall  is  a  method  by  which  it  is  possible  for 

1  See  the  paper  of  Charles  D.  Willard  on  Los  Angeles  in  the  New 
York  volume  of  Proceedings  of  the  National  Municipal  League  for 
further  references  to  the  recall. 

314 


A   MEASURE   OF   POPULAR   CONTROL 

the  public  to  free  itself  from  incompetent  and  objec- 
tionable officials.  As  outlined  in  the  Los  Angeles  stat- 
ute the  law  applies  to  elective  officers.  If  the  public 
wishes  to  vacate  the  office  of  an  objectionable  official, 
a  petition  must  be  signed  by  twenty-five  per  cent,  of 
the  entire  vote  for  all  candidates  for  that  office,  de- 
manding the  election  of  a  successor  to  the  officer 
sought  to  be  removed.  The  petition  must  state  the 
grounds  upon  which  the  removal  is  sought.  The  sign- 
ers must  put  their  addresses  after  their  names  and  the 
whole  petition  shall  be  verified  by  the  oath  of  at  least 
one  person  who  saw  all  of  the  others  sign.  The  peti- 
tion, thus  verified,  is  filed  with  the  city  clerk,  who 
within  ten  days  after  filing  examines  it  for  the  pur- 
pose of  ascertaining  if  the  necessary  number  have 
signed,  and  issues  a  certificate  as  to  his  finding.  If 
he  finds  the  petition  insufficient,  it  may  be  amended  in 
ten  days  after  the  issuance  of  his  certificate.  If  still 
insufficient  after  such  amendment,  it  is  returned  to  the 
petitioners  without  prejudice  against  the  filing  of  an- 
other petition.  If  the  petition  is  found  by  the  clerk  to 
be  sufficient,  he  issues  his  certificate  to  the  municipal 
governing  body  to  that  effect.  The  governing  body 
shall  then  order  an  election  to  be  held  within  not  less 
than  thirty  days  and  not  more  than  forty  days  from 
the  date  of  the  certificate.  The  election  shall  be  con- 
ducted as  other  elections  are  conducted.  The  Los  An- 
geles statute  provides  that  the  person  sought  to  be 
removed  may  be  a  candidate  to  succeed  himself,  unless 
he   requests  otherwise   in   writing,  and   unless   he   so 


THE   INITIATIVE,    REFERENDUM   AND    RECALL 

requests  the  clerk  puts  his  name  on  the  ticket  as  a  can- 
didate. If  some  candidate  other  than  the  incumbent 
receives  the  highest  number  of  votes  he  shall  be  elected 
and  serve  for  the  unexpired  time  of  the  person  com- 
plained against,  who  shall  be  removed.  If  the  incum- 
bent receives  the  highest  number  of  votes  he  shall  con- 
tinue in  his  office.  These,  briefly,  are  the  provisions 
of  what  is  designated  as  the  recall,  and  are  a  part  of 
the  statute  lav\r  governing  the  city  of  Los  Angeles. 

In  the  consideration  of  it  here  the  first  question 
naturally  would  be,  do  we  need  it?  It  would  appear 
to  me  to  be  unnecessary  to  go  into  any  extended  argu- 
ment to  convince  all  present  and  all  who  are  not  pres- 
ent that  if  the  recall  will  do  what  the  provisions  that 
I  have  stated  allege,  then  we  undoubtedly  need  it  and 
need  it  very  badly,  and  have  needed  it  for  a  great 
many  years.  Probably  there  are  very  few  here  present 
who  have  followed  municipal,  county  and  state  affairs 
in  New  Jersey  who  do  not  now  conclude  that  had  we 
the  recall  in  New  Jersey  in  years  gone  by,  and  if  things 
then  happened  that  have  happened,  the  law  would  cer- 
tainly have  had  to  work  overtime.  Without  particu- 
larizing instances,  we  can  recall  to  our  minds  cases 
within  our  knowledge  where  the  people  of  our  own 
neighborhoods  would  have  welcomed  it,  in  order  to 
rid  themselves  of  officials  not  only  incompetent,  but 
whom  we  believe  to  have  yielded  to  the  corrupting 
influence  of  money. 

The  next  question  that  might  be  asked  is,  is  recall 
fair  to  official  and  to  people  ?   In  Los  Angeles  twenty- 

316 


A   MEASURE   OF   POPULAR   CONTROL 

five  per  cent,  of  tlie  entire  vote  for  an  office  is  required 
to  be  signed  to  a  petition  before  the  machinery  of  recall 
can  be  set  in  operation.  Considering  the  fact  that 
for  an  ordinary  office  tliere  may  be  from  three  to  six 
candidates,  this  percentage  would  certainly  seem  to  be 
large  enough  to  remove  the  suspicion  of  unfairness, 
because  it  is  far  easier  to  get  a  man  to  sign  a  petition 
for  a  person  than  it  is  to  sign  one  against  a  person. 
\\''ere  the  recall  adopted  in  New  Jersey  the  percentage 
might  not  be  fixed  at  twenty-five  per  cent. ;  it  might 
be  more  or  it  might  be  less.  So  far  as  the  incumbent 
is  concerned,  after  the  petition  is  filed  against  him  he 
still  has  the  opportunity  under  the  method  of  procedure 
to  vindicate  himself,  and  if  lie  makes  no  move  at  all 
the  law  orders  him  put  upon  the  ticket  as  a  candidate 
for  reelection.  It  seems,  therefore,  that  the  provisions 
are  equitable  in  attempting  to  take  care  of  both  accused 
and  accuser. 

Query  might  l)e  made,  is  it  not  likely  that  the  right 
to  petition  might  be  abused  and  petitions  filed  without 
just  cause?  I  think  we  can  safely  say  there  would 
be  no  danger  of  abuse  of  the  right  to  ])etition.  The 
experience  of  those  familiar  with  municipal  bodies  is 
that  even  now  the  people  of  a  neighborhood  may  tol- 
erate an  abuse  of  their  rights  for  a  considerable  time 
before  petitioning  their  local  governing  bodies  for  a 
correction  of  the  abuse.  Again,  if  the  percentage  of 
the  electors  required  to  sign  is  made,  for  example, 
twenty-five  per  cent.,  it  would  be  impossible  to  pro- 
cure such  a  number  of  signers  unless  the  petition  was 

.317 


THE   INITIATIVE,    REFERENDUM    AND   RECALL 

based  upon  justice.  Publicity  and  public  opinion  are 
the  great  influences  in  our  country  to-da}-,  and  when 
the  movement  to  put  into  operation  the  machinery  of 
recall  is  begun,  it  must  receive  the  approval  of  the 
people  or  it  will  absolutely  fail. 

We  have  in  the  state  of  New  Jersey  to-day  a  law 
which  permits  a  small  number  of  taxpayers  (twenty- 
five)  to  petition  a  supreme  court  justice  for  the  ap- 
pointment of  a  commissioner  to  investigate  municipal 
and  county  affairs.  The  number  of  signers  required 
is  so  small  that  it  might  be  easily  abused,  yet  all  we 
have  to  do  is  read  the  newspaper  accounts  of  such  in- 
vestigations to  be  convinced  that  in  every  case  where 
application  was  made  and  a  commissioner  appointed, 
the  investigation  should  have  been  carried  on. 

There  is  one  provision  of  the  Los  Angeles  plan 
which,  to  my  mind,  should  be  enlarged  upon  if  the 
state  of  New  Jersey  is  to  adopt  the  plan  of  recall. 
The  Los  Angeles  plan  apparently  applies  only  to  elec- 
tive municipal  officials.  I  can  see  no  good  reason,  if 
we  should  ask  for  the  enactment  of  a  statute,  why  it 
should  not  be  embodied  in  a  general  law  and  why 
officials  affected  should  not  be  municipal,  county  and 
state  officials,  both  elective  and  appointive. 

In  the  municipalities  to-day  there  are  very  few 
officials  elected  outside  of  the  mayor,  the  governing 
body,  and  the  board  of  education.  Practically  all  the 
other  officials,  such  as  assessors,  tax  commissioners, 
fire  commissioners,  police  commissioners,  boards  of 
health,  boards  of  assessment,  and  city  officials  are  ap- 

318 


A  MEASURE  OF   POPULAR  CONTROL 

pointed  either  by  the  mayor  or  the  governing  body, 
while  in  the  counties  and  state  there  are  innumerable 
boards  and  officers  that  are  not  elected  at  all,  but  arc 
appointed  by  an  officer  or  a  body,  which  is  itself 
elected.  It  seems  to  me  that  the  recall  should  not  stop 
as  in  Los  Angeles  at  elective  officers,  but  all  officers, 
boards  or  bodies,  whether  elective  or  appointive,  should 
be  amenable  to  the  public  and  it  should  be  within  the 
power  of  the  people  to  call  them  to  task  whenever  their 
conduct  justifies  it.  The  method  of  procedure  out- 
lined in  the  Los  Angeles  statute  covers  the  point  as 
to  elective  municipal  officers.  Of  course,  if  we  go  be- 
yond this  and  embrace  municipal,  county  and  state 
officials,  elective  and  appointive,  the  modus  operandi 
would  have  to  be  framed  to  suit  the  case. 

It  is  rather  difficult  to  say,  without  discussion  and 
consideration,  what  method  of  procedure  should  be 
adopted  to  bring  the  provisions  of  recall  to  bear  upon 
an  appointive  officer.  The  Los  Angeles  provisions  will 
not  apply.  This  is  a  question  that  might  well  be  dis- 
cussed until  a  proper  plan  is  adopted,  if  the  suggestion 
appears  to  be  a  proper  one.  It  seems  to  me  that  in  the 
case  of  an  appointive  officer  the  petition  to  be  signed 
by  a  certain  percentage  or  number  of  taxpayers  should 
be  presented  to  the  appointing  power  in  the  shape  of 
charges,  and  the  appointing  power  should  either  place 
the  accused  on  trial  before  itself  upon  the  charges,  or 
appoint  a  commission,  outside  of  its  own  number,  to 
hear  the  charges  and  conduct  the  trial.  If  the  accused 
is  found  guilty  that  should  terminate  his  right  to  hold 

319 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

the  office,  and  if  not  guilty  he  should  be  allowed  to 
continue  therein. 

In  the  last  session  of  the  New  Jersey  legislature, 
two  bills  prepared  by  a  committee  of  the  New  Jersey 
Civic  Federation  were  introduced,  attempting  to  put 
the  recall  into  effect  in  the  state  of  New  Jersey.  The 
bills  were  known  as  Senate  Bills  Nos.  169  and  170. 
They  were  referred  to  a  committee  but  were  not  en- 
acted into  laws.  It  was  hardly  expected  that  the  bills 
would  be  enacted  into  laws  at  the  session  at  which 
they  were  introduced,  but  the  purpose  of  having  them 
prepared  and  introduced  was  to  attract  the  attention  of 
the  public,  and  induce  discussion  on  the  recall  principle. 
Several  societies  have  already  discussed  the  subject, 
and  it  is  hoped  that  it  will  be  widely  discussed  before 
another  legislature  shall  meet,  at  which  time  the  pas- 
sage of  a  recall  law  will  be  urged  with  the  expectation 
that  such  a  law  will  find  its  way  into  the  statute  books 
of  the  state  of  New  Jersey. 


CHAPTER  XIV 


THE  RECALL  IN  LOS  ANGELES^ 


In  the  autumn  of  1899  the  citizens  of  Los  Angeles, 
beheving  that  their  charter  (adopted  in  1889  when 
the  municipahty  had  scarcely  reached  the  proportions 
of  a  good-sized  town)  had  become  inadequate  to  meet 
the  newer  conditions,  elected  a  board  of  freeholders 
for  the  purpose  of  drafting  a  new  charter.  When 
this  body  had  nearly  completed  its  draft,  however, 
the  supreme  court  of  California  decided,  upon  a  tech- 
nical point,  that  the  board  was  not  legally  consti- 
tuted, and  its  draft  could  not  be  submitted  to  the 
people.  When  a  new  board  was  chosen,  however, 
much  of  the  work  done  by  its  predecessor  was  util- 
ized, and  in  1902  the  voters  were  given  the  oppor- 
tunity of  passing  upon  a  new  charter  which  contained, 
among  other  novel  provisions,  an  arrangement  for 
the  recall  of  elective  officers.  After  the  adoption  of 
the  charter  at  the  polls  it  went  before  the  state  legis- 

1 A  summary  of  an  article  by  Charles  Dwight  Willard,  secretary 
of  the  Los  Angeles  Municipal  League,  in  La  Folletle's  Magazine,  Au- 
gust 7,  1909. 

321 


THE   INITIATIVE,    REFERENDUM    AND    RECALL 

lature  for  ratification,  and  there  a  vigorous  opposition 
to  the  recall  feature  was  encountered.  For  a  time 
it  appeared  as  though  this  provision  might  be  elimi- 
nated. The  precedent,  however,  was  for  the  un- 
conditional acceptance  of  all  charters  vi'hich  had 
been  endorsed  by  the  voters  of  a  city  -and  the 
legislature  did  not,  in  the  end,  venture  to  depart  from 
this. 

After  the  final  adoption  of  the  new  charter  in 
1903  it  was  not  long  before  the  recall  provision  was 
put  into  active  use.  The  city  council  of  Los  Angeles 
was  at  this  time  made  up  mainly  of  machine  poli- 
ticians, who  derived  much  of  their  strength  from  the 
aggressive  support  of  a  Republican  newspaper.  When 
the  contract  for  the  city's  printing  was  about  to  be 
awarded  it  was  found  that  the  proposal  made  by  this 
newspaper  was  about  $15,000  above  that  made  by  the 
lowest  bidder, — an  independent  journal.  Neverthe- 
less, the  council  awarded  the  contract  at  the  higher 
figure. 

It  happened,  however,  that  the  newspaper  which 
secured  the  contract  was  an  aggressive  antagonist  of 
the  local  labor  unions.  It  was  conducted  on  the  prin- 
ciple of  the  open  shop.  The  labor  leaders,  accordingly, 
opened  a  campaign  of  protest  against  the  award,  and 
in  due  course  took  steps  to  secure  the  recall  of  a  coun- 
cilman from  the  sixth  ward  of  the  city.  This  coun- 
cilman had  voted  for  the  award,  although  a  large 
number  of  workmen  voters  were  enrolled  in  his  ward. 
The  necessary  signatures  for  a  recall  petition  (twenty- 

322 


THE  RECALL  IN  LOS  AXGELES 

five  per  cent,  of  the  votes  polled  at  the  last  election) 
w^ere  secured  and  a  recall  election  ordered.  An  oppos- 
ing candidate  was  secured  and  at  the  election  won  by 
a  very  large  majority. 

The  second  use  of  the  recall  in  Los  Angeles 
brought  the  voters  of  the  whole  city  and  not  merely 
those  of  a  single  ward  into  action.  At  the  municipal 
elections  of  1906  there  was  a  strong  sentiment  in  Los 
Angeles  that  the  government  of  the  city  should  be  en- 
tirely non-partisan,  and  an  organization  was  created 
to  help  bring  this  to  pass.  A  slate  of  candidates  was 
put  in  the  field,  and  in  addition  to  this  there  W'ere,  of 
course,  tickets  put  forward  by  the  Republican  and 
Democratic  party  organizations.  It  happened  that  all 
three  candidates  for  mayor  were  well  known  and  the 
result  of  the  election  would  have  been  very  close  had 
not  the  Republican  machine,  in  the  closing  days  of  the 
campaign,  thrown  its  strength  to  the  Democratic  can- 
didate, thereby  electing  the  latter.  The  mayor-elect 
was  Mr.  A.  C.  Harper,  an  officer  in  one  of  the  largest 
Los  Angeles  banks  and  a  business  man  of  excellent 
standing.  He  was  duly  installed  in  office  and  began 
with  the  advantage  of  a  general  popular  impression 
that  he  would  conduct  a  highly  successful  administra- 
tion, notwithstanding  the  methods  used  by  party  lead- 
ers to  secure  his  election. 

But  events  soon  dispelled  this  illusion.  The  appoint- 
ments which  Mayor  Harper  made  during  his  first  year 
in  office  were  of  a  poor  type,  and  rumors  that  the 
mayor  was  shielding  wrong-doers  from  the  enforce- 

323 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

ment  of  the  laws  were  soon  in  currency.  Matters  came 
to  a  head  when  the  city  prosecutor,  Mr.  T.  L.  Wool- 
wane,  made  newspaper  attacks  upon  the  mayor  and 
several  of  his  officials,  charging  them  with  the  protec- 
tion of  vice.  Newspapers  printing  the  charges  were 
at  once  sued  for  lihel.  But  before  the  matter  could 
be  threshed  out  in  the  courts  the  IMunicipal  League 
of  Los  Angeles  held  a  meeting  and,  after  full  discus- 
sion, instructed  its  executive  committee  to  undertake 
the  circulation  of  a  petition  for  the  mayor's  recall. 
Eight  thousand  certified  signatures  were  necessary; 
but  within  a  fortnight  eleven  thousand  had  been  se- 
cured, and  an  election  was  ordered. 

Some  difficulty  was  experienced  in  securing  a  can- 
didate to  take  the  field  against  Mayor  Harper,  but  Mr. 
George  Alexander,  w^ho  had  been  for  a  number  of 
years  county  supervisor,  was  prevailed  upon  to  under- 
take the  leadership  of  the  anti-Harper  forces.  Before 
the  election  came  on  there  were  some  additional  dis- 
closures concerning  Mayor  Harper's  connection  with 
wrong-doing,  and  upon  the  publication  of  these  he  de- 
cided to  resign.  This  action  was  taken  two  weeks  be- 
fore the  day  set  for  polling.  The  council  which,  un- 
der the  charter,  had  the  right  to  fill  vacancies,  chose 
a  mayor  pro  tempore,  and  the  election  w-as  allowed  to 
proceed. 

The  only  remaining  name  upon  the  official  ballot, 
in  addition  to  that  of  Mr.  Alexander,  was  the  name  of 
Mr.  Fred  C.  Wheeler,  a  candidate  put  forward  by  the 
Socialists.     The  Harper  supporters  now  threw  their 

324 


THE  RECALL  IN  LOS  ANGELES 

strength  to  j\Ir.  \Mieeler,  and  made  a  vigorous  attempt 
to  secure  his  election.  They  were  not  successful,  how- 
ever, and  ]\Ir.  Alexander  won  by  a  majority  of  about 
1, 600  votes.  The  consensus  of  opinion  is  that  he 
made  a  successful  mayor;  he  was  renominated  and  re- 
elected at  the  two  succeeding  elections. 


CHAPTER  XV 


THE    RECALL   IN    SEATTLE  ^ 


On  March  6,  1906,  the  voters  of  Seattle  by  a  ma- 
jority of  8,047  oi-it  of  a  total  vote  of  10,577  wrote 
into  the  city  charter  the  provision  for  the  recall  of 
all  elective  officers  of  the  municipality. 

The  process  is  simple.  "  A  petition  signed  by 
voters  entitled  to  vote  for  a  successor  to  the  incum- 
bent, ecjual  in  number  to  at  least  twenty-five  per  centum 
of  the  entire  vote  for  all  candidates  for  the  office,  the 
incumbent  of  which  is  sought  to  be  removed,  cast  at 
the  last  preceding  general  municipal  election,  demand- 
ing an  election  of  a  successor  of  the  person  to  be  re- 
moved "  must  be  filed  with  the  city  clerk.  This  peti- 
tion must  bear  "  a  general  statement  of  the  grounds 
for  which  removal  is  sought."  *'  The  signatures  need 
not  be  appended  to  one  paper,  but  each  signer  shall 
add  to  his  signature  his  place  of  residence,  giving  the 
street  and  number."  "  Any  person  competent  to  make 
affidavit  may  circulate  "  the  petition  and  "  shall  make 
oath  before  an  officer  competent  to  administer  oaths 

that  the  statements  therein  made  are  true,   and  that 
9 

«  By  Fred  Wayne  Catlett,  secretary  to  the  mayor  of  Seattle. 

226 


THE  RECALL  IN   SEATTLE 

each  signature  to  the  paper  appended  is  the  genuine 
signature  of  the  person  whose  name  purports  to  be 
thereunto  subscribed."  Ten  days  are  allowed  the  city 
clerk  to  check  the  signatures  with  the  poll  books.  In 
any  case  he  must  attach  a  certificate  "  showing  the 
result  of  the  examination."  If  this  certificate  shows 
the  petition  insufiicient,  ten  days  are  allowed  for  the 
filing  of  a  supplementary  petition.  Ten  days  more 
are  given  the  clerk  to  check  this  petition.  If  insufficient, 
the  whole  petition  is  returned  to  the  person  filing  it 
"  without  prejudice  to  the  filing  of  a  new  petition." 
If  a  petition  is  found  "  sufficient,"  the  clerk  must  so 
certify  to  the  city  council  at  once,  and  it  must  set  the 
date  for  the  election  "  not  less  than  thirty  days  nor 
more  than  forty  days  from  the  date  of  the  clerk's  cer- 
tificate." All  the  ordinary  steps  to  hold  an  election 
are  taken.  The  incumbent's  name  is  placed  on  the  bal- 
lot "  unless  he  requests  otherwise  in  writing."  The 
candidate  receiving  the  higliest  number  of  votes  is 
chosen  to  serve  out  the  remainder  of  the  incumbent's 
term. 

That  is  the  whole  of  the  "  recall  "  charter  provis- 
ion. At  its  first  trial  it  was  discovered  that  it  provided 
no  method  of  nominating  opponents  of  the  incum- 
bent. Fortunately  the  state  legislature  was  in  session 
at  Olympia,  and  an  act  known  as  chapter  2  of  the  Ses- 
sion Laws  of  191 1  was  rushed  through  as  an  emer- 
gency measure,  providing  for  nomination  by  petition 
signed  by  electors  equal  in  number  to  not  less  than 
five  per  cent,  of  the  total  vote  cast  for  the  incumbent 

327 


THE  INITIATIVE,   REFERENDUM   AND   RECALL 

against  whom  the  recall  is  directed.  Each  elector 
signs  his  place  of  residence,  his  business,  and  his  ad- 
dress by  street  and  number.  This  petition  must  be 
filed  with  the  city  clerk  ten  days  before  the  election. 

A  short  time  thereafter,  to  cure  another  defect, 
chapter  6  of  the  Session  Laws  of  191 1  was  enacted, 
granting  each  candidate  the  privilege  of  appointing 
challengers  at  each  polling  place,  one  of  whom  is  en- 
titled to  be  within  the  polling  place  during  the  whole 
time  the  polls  are  open. 

In  practice  the  recall  has  been  operated  as  fol- 
lows :  Those  favoring  a  recall  of  an  officer  have  or- 
ganized an  association,  collected  funds,  formulated  cer- 
tain very  general  charges  of  inefficiency,  and  malad- 
ministration, printed  many  hundreds  of  petitions,  and 
placed  them  in  the  hands  of  anyone  willing  to  take 
them. 

At  the  top  of  each  petition  is  the  general  statement 
of  the  charges,  which  may  or  may  not  have  any  foun- 
dation in  fact.  In  the  attempted  recall  of  Mayor  Bill- 
ing, precisely  the  same  set  of  charges  was  used  as  in 
the  recall  of  Mayor  Gill,  though  some  of  them  seemed 
inapplicable.  Below  the  charges  is  the  statement  that 
the  signer  is  a  voter  entitled  to  vote  for  a  successor 
to  the  incumbent,  and  space  for  from  ten  to  fifty 
names.  At  the  bottom  is  the  oath  required  by  the  law 
of  the  person  taking  the  signatures.  It  is  an  "  im- 
possible "  oath,  for  it  requires  the  passer  of  the  peti- 
tion to  swear  that  the  statements  therein  made,  i.  e., 
that  the  signer  is  a  voter,  qualified  to  vote  for  a  suc- 

328 


THE   RECALL   IN    SEATTLE 

cesser  to  the  incumbent,  tlial  his  residence  is  such 
and  sucli  a  street  and  number,  are  true,  and  that  each 
signature  to  the  petition  is  the  "  genuine  signature  of 
the  person  whose  name  purports  to  be  thereunto  sub- 
scribed." In  a  city  of  two  hundred  and  fifty  thousand 
people,  as  a  practical  matter,  no  person  passing  a  peti- 
tion can  honestly  take  such  an  oath  to  one  name  in 
ten.  As  it  is  actually  worked,  petitions  are  placed  in 
the  hands  of  many  irresponsible  people  who  indiscrim- 
inately solicit  signatures  on  the  streets  and  in  the  office 
buildings,  ignorant  in  the  great  majority  of  cases  not 
only  of  the  voting  qualifications  of  the  signer,  but  also 
of  the  genuineness  of  the  name  and  signature. 

Some  of  this  passing  of  petitions  is  done  gratui- 
tously, but  much  of  it  is  also  undertaken  by  paid  solici- 
tors— though  sometimes  paid  by  the  day,  more  often  it 
is  at  so  much  per  name,  generally  ten  cents.  This  is 
a  great  incentive  to  careless  work  on  the  part  of  the 
solicitor  and  a  cause  of  some  irresponsible  and  thought- 
less signing  by  voters.  Any  name  which  sounded  like 
the  name  of  a  real  person  counted  for  the  ten  cents, 
and  payment  was  necessarily  made  before  the  check- 
ing by  the  city  clerk.  Solicitors,  when  asked  why  the 
voter  should  sign,  often  replied,  "Oh,  I  don't  know; 
all  I  know  is,  that  I  get  ten  cents  a  name."  If  the 
voter  had  no  settled  convictions,  he  signed  to  be  a 
"  good  fellow  and  help  along." 

As  soon  as  the  association  having  the  matter  in 
charge  thinks  it  has  a  safe  margin  of  signatures  above 
the  required  number,  it  calls  in  tlie  petitions  and  car- 
22  329 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

ries  them  to  the  clerk's  office,  where  they  are  counted, 
numbered  and  receipted  for.  The  names  on  each  peti- 
tion are  also  counted  and  the  total  number  of  signa- 
tures determined.  If  the  total  number  is  less  than 
twenty-five  per  cent,  of  the  total  vote  cast  for  the  office 
at  the  "last  preceding  general  election,"  the  petition 
— for  all  the  separate  sheets  are  regarded  as  one  peti- 
tion— is  not  filed  but  returned  to  the  association.  The 
presentation  of  a  petition  prUna  facie  sufficient  is  juris- 
dictional. 

But  if  it  is  prima  facie  sufficient,  the  checking  be- 
gins. In  practice  in  this  city  two  or  three  checks  are 
made.  On  the  first  check  all  questionable  signatures 
are  thrown  out.  On  the  second  and  third  check,  those 
thrown  out  are  reexamined  and  many  of  them  are 
restored.  The  causes  for  the  rejection  of  names  are 
no  registration,  illegible  or  forged  signatures,  improper 
addresses,  and,  in  the  case  of  the  women,  signatures 
with  the  initials  of  the  husband.  The  parties  inter- 
ested always  keep  paid  or  voluntary  workers  to  guard 
the  checking.  Disputed  names  are  referred  to  the 
comptroller  or  his  deputy  for  decision.  If  the  dispute 
turns  on  a  question  of  law,  the  opinion  of  the  corpora- 
tion counsel  is  asked  and  followed.  If  the  number 
of  genuine  signatures  exceeds  the  required  twenty-five 
per  cent,  the  comptroller  certifies  it  to  the  city  council 
as  "  sufficient." 

If  the  number  is  found  insufficient,  the  person  fil- 
ing the  petition  is  notified  and  has  ten  days  to  make 
up  the  deficiency.    As  only  two  filings  are  contemplated 

330 


THE  RECALL  IN   SEATTLE 

under  our  law,  he  and  his  association  make  haste  to 
collect  all  the  signatures  possible  and  file  them  before 
the  expiration  of  the  time  limit.  This  supplementary 
petition  is  checked  in  the  same  manner  as  the  original 
petition.  If  it  contains  enough  genuine  signatures  to 
make  up  the  deficiency,  the  comptroller  certifies  it  as 
"  sufficient  "  unless  before  his  certificate  is  made  out 
enough  of  the  genuine  signatures  are  withdrawn  to 
render  it  insufficient. 

The  recall  law  is  silent  about  withdrawals,  but  a 
decision  of  our  state  supreme  court  had  affirmed  the 
right  to  withdraw  names  from  an  initiative  petition, 
and  the  corporation  counsel  advised  the  comptroller  to 
accept  them  in  the  case  of  the  recall.  Then  the  ques- 
tion arose  over  the  form  of  the  withdrawal.  Must  the 
request  to  withdraw  a  name  be  verified  before  a  no- 
tary as  was  the  original  signature?  Where  the  with- 
drawal was  secured  by  personal  solicitation,  there  was 
no  difficulty,  but  where  the  withdrawals  came  in  by 
mail,  verification  was  a  practical  impossibility  in  many 
cases.  Our  city  comptroller  agreed  to  count  the  postal 
withdrawals  if  all  were  verified  by  the  oath  of  the 
person  in  charge  of  their  collection  that  each  card 
had  been  received  in  due  course  of  mail  through  the 
United  States  Post  Office,  and  that  he  believed  the 
signatures  to  be  genuine.  It  is  quite  apparent  that 
this  oath,  also,  furnishes  no  adequate  safeguard 
against  fraud. 

Seattle  has  given  the  recall  two  trials — very  differ- 
ent in  character  and   result,   thus  serving  to  test  the 

331 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

law  in  many  different  respects.  For  the  sake  of  clear- 
ness, we  may  call  the  two  trials,  the  Gill  recall,  and  the 
Billing  recall.  The  former  was  successful ;  the  latter 
unsuccessful. 

The  Gill  petitions  contained  11,418  names,  of  which 
9,626  were  termed  genuine  by  the  comptroller,  a 
shrinkage  of  sixteen  per  cent.  Most  of  these  petitions 
were  passed  by  responsible  persons,  and  all  were  care- 
fully checked  by  the  Public  Welfare  League  before 
filing.  As  8,671  names  were  enough,  the  petition  was 
certified  "  sufficient." 

Just  before  the  filing  of  the  Gill  petitions,  the 
women  of  Washington  were  enfranchised.  Neither 
this  occurrence  nor  a  second  recall  within  the  one  term 
of  two  years  had  been  contemplated  by  the  framers 
of  the  recall  law.  The  basis  for  determining  the  num- 
ber of  names  necessary  to  institute  it  was  "  the  total 
number  of  votes  cast  for  the  incumbent  at  the  last 
general  municipal  election."  A  recall  election  is  in 
its  very  nature  special ;  therefore,  in  the  Billing  recall, 
the  vote  at  the  Gill  election  became  the  basis  for  ousting 
Billing.  The  evident  intent  had  been  to  require 
twenty-five  per  cent,  of  the  number  cast  at  the  time 
the  person  to  be  recalled  was  elected,  not  the  number 
cast  at  the  time  his  predecessor  was  chosen.  But  in 
Mr.  Billing's  case  the  strict  letter  of  the  law  permitted 
the  institution  of  the  recall  with  8,671  votes  as  before, 
although  at  his  election  62,322  votes  were  cast,  of 
which  15,581  is  twenty-five  per  cent. 

In  the  Billing  recall,  the  original  petition  contained 

332 


■  THE  RECALL   IN    SEATTLE 

10,254  names,  of  which  7,295  were  declared  genuine. 
As  this  was  insufficient,  a  supplementary  petition  of 
2,617  names  was  filed,  checking  1.753  as  genuine. 
This  would  have  been  sut^cient  by  ^iiyy  had  not  931 
withdrawals  been  filed  before  the  certificate  was  pre- 
pared. Only  527  were  checked  because  it  was  then 
perfectly  apparent  that  the  petition  was  insufficient. 
Had  15,581  names  been  necessary,  the  petition  would 
never  have  been  dangerous.  These  figures  show  the 
rejection  of  sixteen  per  cent,  of  the  names  on  the  Gill 
petition,  and  thirty  per  cent,  on  the  Billing  petition — 
in  spite  of  the  stringent  oath  required  from  the  solici- 
tors of  names. 

The  increase  in  the  percentage  of  rejected  names 
in  the  Billing  petitions  over  the  Gill  petitions  is  due 
largely  to  the  careful  checking  of  the  latter  by  the 
Public  Welfare  League  before  filing  them  with  the 
comptroller.  The  large  number  of  names  thrown  out 
has  led  some  people  to  contend  that  the  signing  of  the 
petitions  is  not  sufficiently  safeguarded.  The  causes 
for  the  rejection,  however,  hardly  sustain  this  position, 
for  although  a  few  fraudulent  and  forged  signatures 
were  found,  most  of  those  thrown  out  were  names  of 
women  who  had  signed  the  initials  of  their  husbands, 
thus  making  it  impossible  to  identify  them,  and  the 
names  of  men,  not  registered,  or  who  had  given  in- 
correct addresses  which  could  not  be  corrected  from 
the  records.  When  we  consider  how  very  careless 
the  majority  of  people  are,  even  in  the  most  serious 
business  affairs  such  as  the  signing  of  deeds,  we  need 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

not  be  surprised  at  the  large  percentage  of  rejected 
signatures. 

It  has  also  been  the  idea  of  some  people  that  there 
was  too  much  irresponsible  signing.  It  is  said  that 
"  you  can  get  people  to  sign  any  sort  of  a  petition, 
provided  you  don't  ask  them  for  money."  This  is 
supported  by  the  fact  that  upon  solicitation  i,ioo 
names  were  withdrawn  from  the  Billing  petition  after 
it  was  filed.  To  my  own  mind  this  is  not  a  serious 
evil.  The  recall  is  a  new  political  contrivance.  Peti- 
tions hertofore  have  in  the  main  been  harmless.  The 
people  have  to  learn  that  now,  in  the  case  of  the  initia- 
tive and  the  recall,  petitions  are  serious.  They  mean  in- 
creased expense  and,  perhaps,  all  the  disquiet  of  a 
municipal  campaign.  For  myself,  I  believe  that  this 
evil  will  be  less  and  less  apparent  as  our  voters  become 
more  accustomed  to  the  workings  of  these  democratic 
institutions. 

Mention  has  already  been  made  of  the  fact  that 
petitions  were  frequently  passed  by  paid  solicitors  with 
every  incentive  to  careless  work.  But  the  task  of  col- 
lecting the  signatures  of  twenty-five  per  cent,  of  the 
voters  is  so  big  that  it  could  seldom  be  accomplished 
without  paid  assistance.  Others  object  to  the  passing 
of  the  petitions  on  the  streets  and  in  public  places  on 
the  ground  that  it  parades  our  civic  contention  before 
all  our  visitors.  But  where  one  person  observes  our 
discord  in  that  way,  a  thousand  may  read  of  it  in  our 
newspapers. 

So  far  we  have  been  examining  the  various  parts 

334 


THE  RECALL   L\    SEATTLE 

of  the  recall  machinery  separately.  Let  us  now  con- 
sider how  the  recall  law  as  a  whole  has  worked  in 
Seattle. 

For  over  four  years  the  recall  remained  an  unused 
part  of  our  charter.  Then  arose  just  such  a  situation 
as,  in  my  opinion,  the  recall  was  designed  to  meet.  It 
is  not  my  purpose  to  portray  in  all  its  disgusting  de- 
tails the  alliance  between  our  police  department  and 
the  "  vice  syndicate."  To  be  sure,  Mayor  Gill  was 
elected  on  the  platform  of  a  restricted  district,  and 
good  citizens  cannot  escape  all  blame  for  his  success. 
But  the  circumstances  surrounding  his  election  afford 
some  excuse.  His  opponent  at  the  primary,  though 
an  able  and  worthy  man,  was  of  foreign  extraction, 
a  poor  talker,  and  a  man  who  had  the  reputation, 
whether  deserved  or  not,  of  being  unable  to  work  with 
other  men.  He  had  been  dismissed  from  office  by 
Mayor  Niller  largely  for  that  cause.  For  these  reasons 
he  was  not  the  man  around  whom  all  the  opponents  of 
Gill  could  rally  with  enthusiasm.  At  the  election  Mr. 
Gill  was  opposed  by  ex-Mayor  William  Hickman 
Moore,  a  Democrat,  and  although  Judge  Moore  ran 
way  ahead  of  his  ticket,  partisan  politics  carried  i\Ir. 
Gill  into  office.  In  accordance  with  his  ante-election 
promises,  he  established  a  "  restricted  district,"  but  it 
proved  to  be  "  restricted  "  only  in  name.  All  kinds  of 
vice  and  crime  flourished  there  under  the  protection 
of  the  police.  And  the  whole  institution  was  in  direct 
violation  of  the  criminal  laws  of  the  state.  Gill  had 
also  promised  that  there  should  be  no  open  gambling. 

33.S 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

It  was  not  long,  however,  until  gambling  joints  were 
operating  within  a  few  blocks  of  the  city  hall — also 
under  the  protection  of  the  police. 

One  of  Gill's  appointees  was  Richard  M.  Arms,  a 
former  employee  of  the  Seattle  Electric  Company,  the 
corporation  which  owns  and  operates  most  of  our 
street-car  lines,  and  furnishes  a  large  part  of  our  light. 
In  the  latter  service  it  competes  directly  with  our  mu- 
nicipal lighting  plant.  It  was  charged  that  Arms  was 
operating  the  municipal  plant  in  the  interest  of  the 
Seattle  Electric  Company.  While  this  was  one  of  the 
issues  in  the  recall  campaign,  it  was  not  the  main  issue. 
The  recall  would  never  have  been  invoked  except  for 
the  alliance  between  the  administration  and  organized 
vice. 

Our  charter  also  provides  a  method  of  impeach- 
ment of  the  mayor  by  a  vote  of  two-thirds  of  the  mem- 
bers of  the  city  council,  but  the  council,  as  is  likely  to 
be  the  case,  would  not  act.  It  never  has  impeached 
an  officer  in  the  history  of  the  city.  Impeachment  be- 
ing impossible,  resort  was  made,  therefore,  to  the  re- 
call for  the  first  time. 

The  movement  was  started  by  an  organization 
known  as  the  Public  Welfare  League.  With  great 
energy  the  work  of  collecting  the  signatures  was 
pushed.  Many  thought  the  recall  unfair  and  un- 
American:  that  the  voters  had  put  Gill  in  and  that 
he  was  entitled  to  stay ;  that  those  who  had  not  voted 
for  him,  and  those  who  did  not  vote  at  all  should 
"  take  their  medicine."     A  great  deal  of  excitement 

336 


THE  RECALL   IN   SEATTLE 

and  argument  was  necessary  before  the  petitions  were 
finally  filed,  but  filed  they  were. 

A  very  bitter  campaign  followed.  Behind  Mr.  Gill 
lined  up  all  the  old  politicians,  all  the  saloon  and 
gambling  element,  the  breweries,  the  pool-rooms,  the 
cigar  stands,  the  habitues  of  the  restricted  district,  the 
liberal  element,  the  men  opposed  to  the  recall  "  on  prin- 
ciple," and  a  good  many  of  the  so-called  "  business 
men."  On  the  other  side  were  the  Public  Welfare 
League,  the  Municipal  League,  all  the  Protestant 
churches,  the  various  women's  clubs,  and  also  a  large 
part  of  the  influential  business  and  professional  men. 
So  great  was  the  interest  in  the  coming  election  that 
with  the  aid  of  the  women  the  registration  leaped  from 
47,000  to  over  72,000. 

On  election  day  62,322  votes  were  cast  (about  one- 
third  being  the  votes  of  women),  of  which  Dilling  re- 
ceived 31,919,  Gill  25,705,  and  Brown,  the  Socialist, 
4,698. 

The  new  mayor  adopted  the  policy  of  strict  law 
enforcement.  The  restricted  district  had  been  closed 
by  an  injunction,  and  remained  closed.  Open  gam- 
bling was  stopped.  Wappenstein,  chief  of  police,  and 
Arms,  superintendent  of  lighting,  resigned.  A  month 
later  every  one  of  the  Gill  element  in  the  council  was 
defeated.  The  alliance  between  the  city  government 
and  the  vicious  element  had  been  most  rudely  shat- 
tered. 

Another  important  result  of  the  election  of  Mr. 
Dilling  was  that  the  recall  was  shown  to  be  "  work- 

?,?<7 


THE  INITIATIVE,    REFERENDUM   AND   RECALL 

able."  In  the  future  its  very  existence  should  be  a 
deterrent  to  the  dishonest  elective  official.  But  to  make 
it  an  effective  deterrent,  it  had  to  be  worked  once. 
Gill  and  his  friends  at  first  scouted  the  idea  of  a  suc- 
cessful recall ;  now  the  most  hardened  politician  will 
feel  unsafe. 

Some  of  the  people  of  Seattle  failed  to  realize  that 
the  recall  was  an  emergency  measure,  and  another  les- 
son in  its  use  was  necessary  to  teach  them  that  fact. 

The  direct  cause  of  the  attempt  to  recall  Mayor 
Billing  was  his  refusal  to  accede  to  the  written  demand 
of  a  "  Citizens'  Recall  Association  "  to  remove  from 
office  the  head  jailer,  John  Corbett.  Charges  of  cruel 
and  inhuman  conduct  were  made  against  him,  practi- 
cally all  of  them  antedating  the  administration  of 
Mayor  Billing.  The  chief  of  police  sustained  Cor- 
bett, and  the  mayor  declared  that  no  credible  evidence 
had  been  produced  sufficient  to  justify  him  in  requir- 
ing the  chief  of  police  to  dismiss  him.  If  dismissed. 
Corbett,  as  a  civil-service  employee,  could  have  ap- 
pealed to  the  civil-service  commission  and  would  have 
been  entitled  to  a  trial  by  that  body. 

Certain  reformers  were  also  displeased  by  the 
mayor's  veto  of  the  anti-smoking  bill,  prohibiting 
smoking  on  the  street  cars,  and  the  anti-strap-hanging 
bill,  limiting  the  number  of  standing  passengers  in  a 
street  car  to  fifty  or  sixty  per  cent,  of  the  seating  ca- 
pacity and  placing  a  penalty  upon  the  company  if  it 
failed  to  furnish  an  intending  passenger  with  trans- 
portation within  the  regular  "  headway  "  time. 

338 


THE  RECALL   L\    SEATTLE 

In  these  circumstances,  the  old  Gill  crowd  saw  its 
chance,  and  proceeded  to  lend  its  strength  to  the  recall 
movement.  The  whole  vicious  element,  together  with 
a  number  of  well-intentioned  men  and  women,  signed 
the  petitions,  which  were  duly  filed  some  six  or  seven 
weeks  after  the  fight  began. 

Before  going  further,  I  should  say  that  the  Asso- 
ciation had  also  attempted  the  recall  of  four  of  the  city 
councilmen — Blaine,  Wardall,  Kellogg  and  Steiner. 
The  Steiner  petition  was  never  filed.  The  other  peti- 
tions were  filed,  but  not  having  the  required  twenty- 
five  per  cent.,  even  if  all  the  signatures  were  genuine, 
the  filing  marks  were  cancelled,  and  the  petitions  re- 
turned to  the  Association. 

The  petition  directed  at  Mayor  Billing  contained 
10,254  names.  This  total  shrank  to  7,295  on  the  third 
check.  The  Association  tried  to  make  good  the  de- 
ficiency within  the  ten  days  allowed  by  the  charter. 
Owing  to  peculiar  circumstances  this  time  was 
stretched  to  twelve  days  including  Labor  Day  and 
election  day,  but  with  the  advantage  of  these  extra  and 
extraordinary  days,  the  supplementary  petition  con- 
tained but  2,617  names,  reduced  to  1,753  by  the  check. 
As  stated  before,  this  was  yjy  more  than  enough.  The 
corporation  counsel  had  ruled,  however,  that  names 
could  be  withdrawn,  and  on  the  faith  of  this.  Mayor 
Dilling's  friends  had  organized  and  secured  about 
1. 100  withdrawals.  Of  these  931  were  filed.  As  the 
check  of  527  showed  clearly  that  the  recall  had  failed, 
the  comptroller  went  no  further  with  the  count. 

339 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

This  second  experience  with  the  recall  demonstrated 
that  although  the  recall  is  "  workable,"  it  cannot  be 
worked  successfully  except  when  there  is  serious  cause 
for  it.  Save  for  the  peculiar  wording  of  the  charter 
and  the  enfranchisement  of  the  women  after  Gill's 
election,  the  Association  would  never  have  succeeded 
in  collecting  anything  like  enough  names.  The  fail- 
ure of  the  second  attempt  put  the  necessary  damper 
upon  those  persons  who  thought  they  had  only  to  start 
a  recall  to  make  it  a  success. 

Naturally  public  opinion  in  Seattle  is  divided  over 
both  the  principle  of  the  recall  and  our  own  particular 
recall  law.  I  believe  the  majority  favor  the  recall 
principle  and  think  it  has  fully  justified  its  existence 
in  our  city  charter.  Many  friends  of  the  recall  prin- 
ciple desire  to  see  our  law  amended  in  various  ways. 
The  daily  press  has  informed  us  that  the  charter  revi- 
sion commission  has  approved  the  proposal  of  the 
former  corporation  counsel  by  which  the  signatures 
on  the  petition  must  equal  five  per  cent,  of  the  total 
vote  cast  at  the  election  at  which  the  incumbent  was 
chosen  before  it  is  presented  to  the  city  comptroller. 
The  petition  is  then  left  in  his  office  until  ten  per  cent, 
more  have  come  in  and  signed.  This  plan  reduces  the 
percentage  required  but  makes  it  much  more  difficult 
to  sign.  It  throws  much  more  security  about  the  sign- 
ing and  does  away  with  a  great  deal  of  the  solicitation 
of  signatures.  To  make  it  more  difficult  will  destroy 
its  value  and  relegate  it  along  with  the  impeachment  to 
a  shelf  in  the  political  garret.     Without  the  recall,  the 

340 


THE  RECALL  IN   SEATTLE 

people  are  helpless  between  elections;  with  it,  and  its 
efficiency  unimpaired,  they  always  have  in  their  hands 
a  power  which  can  be  exerted  to  bring  to  time  an  un- 
faithful or  incompetent  public  official.  Seattle's  ex- 
perience has  amply  demonstrated  the  utility  of  the 
recall. 


CHAPTER  XVI 


SOURCES    AND    LITERATURE 


The  appended  list  includes  references  to  only  a 
small  part  of  the  literature  relating  to  direct  legisla- 
tion and  the  recall.  An  endeavor  has  been  made  to 
list  only  such  discussions  as  have  contributed  sub- 
stantial arguments  or  trustworthy  information  bear- 
ing upon  either  side  of  the  question.  Those  which 
the  general  reader  would  probably  find  most  useful 
have  been  indicated  by  an  asterisk. 

Bibliographies 

Library  of  Congress.  Select  List  of  References  on 
Initiative,  Referendum  and  Recall.  Compiled  by 
H.  H.  B.  Meyer.  Washington,  191 1.  The  best 
arranged  and  most  complete  list  yet  issued.  It 
includes  historical  materials,  books,  pamphlets 
and  review  articles. 

Ohio   State   Library.     Legislative   Reference  Depart-, 
ment.     Initiative  and  Referendum.    Compiled  by 
C.  B.  Galbreath.     Columbus,  191 1.     A  pamphlet 
containing  texts  of  constitutional  provisions  relat- 

342 


SOURCES  AND  LITERATURE 

ing  to  direct  legislation  in  various  states;  also  a 
useful  list  of  books  and  articles. 

Wisconsin  Library  Commission.  Compaiative  Legis- 
lation Bulletin,  No.  21.  The  Initiative  and  Ref- 
erendum. Compiled  by  C.  H.  Talbot.  Madison, 
1910. 

\\'^isconsin  Library  Commission.  Comparative  Legis- 
lation Bulletin,  No.  12.  The  Recall.  Compiled 
by  Margaret  A.  Schaffner.    Madison,  1907. 

These  Bulletins  contain  accurate  digests  of  the 
laws  and  judicial  decisions,  with  well-selected  lists  of 
books  and  articles. 


Books  and  Pamphlets 

Barnet,  James  D.  The  Operation  of  the  Recall  in  Ore- 
gon. American  Political  Science  Review,  Vol. 
vi,  pp.  41-53. 

*Beard,  C.  A.,  &  Shultz,  B.  E.  Documents  on  the 
State-W'ide  Initiative,  Referendum  and  Recall. 
New  York,  19 12.  Contains  all  constitutional 
amendments  providing  for  a  state-wide  system 
of  direct  legislation,  several  of  the  most  important 
statutes  elaborating  these  constitutional  provi- 
sions, together  with  various  constitutional  amend- 
ments now  being  submitted  for  adoption.  Some 
significant    judicial    decisions    are    also    included 

343 


THE   INITIATIVE,    REFERENDUM   AND   RECALL 

and  some  data  regarding  the  recall  as  applied  to 
state  officers. 

*Beard,  C.  A.  Digest  of  Short  Ballot  Charters.  New 
York,  191 1.  A  collection  of  city  charters,  chiefly 
of  municipalities  which  have  adopted  the  com- 
mission type  of  government.  It  is  an  extremely 
useful  compilation. 

*Bourne,  Jonathan,  Jr.  Popular  vs.  Delegated  Gov- 
ernment. A  speech  delivered  in  the  United  States 
Senate,  May  5,  1910.  It  is  a  summary  of  the 
results  of  direct  legislation  in  Oregon  and  a  spir- 
ited defence  of  the  system. 

Bradford,  Gamaliel.  The  Lesson  of  Popular  Govern- 
ment. 2  vols.  New  York,  1899.  Especially  Vol. 
ii,  pp.  189-201.  An  argument  that  direct  legisla- 
tion would  prove  an  inadequate  remedy  for  the 
shortcomings  of  representative  government. 

Cleveland,  F.  A.  The  Growth  of  Democracy  in  the 
United  States.  New  York,  1898.  pp.  177-241. 
Some  good  historical  data. 

*Civic  Federation  of  Chicago.  Bulletin  No.  3  (1911). 
The  Dangers  of  the  Initiative  and  Referendum. 
A  pamphlet  containing  several  addresses  in  oppo- 
sition to  the  extension  of  direct  legislation. 

Dodd,  W.  F.  The  Revision  and  Amendment  of  State 
Constitutions.  Baltimore,  1910.  An  excellent 
account,  historical  and  critical,  of  the  referendum 
as  applied  to  state  constitutions. 

Fabian  Society.  Tract  No.  155.  The  Case  Against 
the  Referendum.     By  Clifford  D.  Sharp.     Lon- 

344 


SOURCES  AND  LITERATURE 

don,  191 1.  A  trenchant  Socialist  argument 
against  the  reference  of  pubHc  questions  to  the 
voters. 

Frankenthal-,  L.  J.  The  Initiative  in  Switzerland. 
6ist  Congress,  ist  Session  (1909).  Senate  Doc- 
ument. Xo.  126.  A  report  on  the  initiative  in 
the  Swiss  Repubhc  by  the  United  States  Vice 
Consul  at  Berne   (May,   1908). 

Gilbertson,  H.  S.  Conservative  Aspects  of  the  Recall. 
National  Municipal  Review,  Vol.  i.  pp.  204-211. 

Godkin,  E.  L.  Unforeseen  Tendencies  of  Democracy. 
Boston,  1898.  Especially  pp.  96-144.  A  sug- 
gestive discussion  by  a  far-sighted  journalist. 

Hardy,  Arthur  S.  The  Initiative  and  Referendum. 
57th  Congress,  2nd  Session  (1902).  House  Doc- 
ument Xo.  I,  pp.  482-494  (in  Serial  No.  4440). 
A  careful  report  on  the  workings  of  the  initiative 
and  referendum  in  the  Swiss  Republic  transmitted 
by  the  American  Minister  to  Switzerland  (June, 
I 902 ) . 

Hartwell,  E.  M.  Referenda  in  Massachusetts.  Pro- 
ceedings of  the  National  Municipal  League,  1909. 
PP-  334~353-  Deals  chiefly  with  the  amount  of 
public  interest  shown  at  referenda  elections. 

Kinkead,  E.  B.  The  Initiative  and  Referendum.  Pro- 
ceedings of  the  Ohio  State  Bar  Association,  1907. 
Vol.  xxviii,  pp.  145-185.  An  extended  argument 
against  direct  legislation. 

Lecky,  W.  E.  H.  Democracy  and  Liberty.  2  vols. 
London,  1896.  Especially  Vol.  i,  pp.  277  ff. 
23  34.S 


THE   INITIATIVE,    REFERENDUM    AND   RECALi: 

Legislation  by  the  people  in  its  historical  relation 
to  democracy  and  popular  freedom. 

*Lobingier,  C.  S.  The  People's  Law.  New  York, 
1909.  An  elaborate  study  of  popular  law-making 
mainly  historical.  Chapter  xxvi  gives  a  useful 
summary  of  the  results  of  direct  legislation  in 
America. 

Lowell,  A.  Lawrence.  Governments  and  Parties  in 
Continental  Europe.  2  vols.  Boston,  1896. 
Especially  Vol.  ii,  pp.  238-300.  A  study  of  the 
practical  working  of  the  initiative  and  referendum 
in  the  Swiss  Republic. 

MacDonald,  J.  Ramsay.  Socialism  and  Government. 
2  vols.  London,  1909.  Vol.  i.  pp.  127-166.  Dis- 
cusses the  problem  of  accurately  representing  pub- 
lic opinion  from  the  socialist  point  of  view. 

Mill,  J.  S.  On  Representative  Government.  New 
York,  1905.     Especially  ch.  iii-vii. 

*Oberholzer,  E.  P.  The  Referendum,  Initiative  and 
Recall  in  America.  New  edition,  New  York, 
191 1.  A  standard  work,  comprehensive  in  scope 
and  conservative  in  tone.  Contains  historical  and 
critical  discussions  of  both  the  initiative  and  ref- 
erendum. 

*Owen,  R.  L.  The  Code  of  the  People's  Rule.  61  st 
Congress,  2d  Session  (1910).  Senate  Document 
No.  603.  Especially  pp.  101-129.  A  collection 
of   constitutional   provisions,    statutes   and    ordi- 

346 


SOURCES  AND  LITERATURE 

nances  which  have  been  adopted  as  a  means  of 
furthering  the  cause  of  popular  government. 
Parsons.  Frank.     The  City  for  the  People.     Boston, 
1900.      Especially  pp.   255-386;   505-527;  605- 
629. 

Phelps,  E.  M.  Selected  Articles  on  the  Initiative  and 
Referendum.  Wilson's  Debaters'  Handbook 
Series.  Minneapolis,  1909.  A  number  of  short 
articles  on  both  sides  of  the  question.  Bibliogra- 
phy appended. 

Pomeroy,  Eltweed.  Papers  on  Direct  Legislation. 
55th  Congress,  2d  Session  (1898).  Senate  Doc- 
ument No.  340  (in  Serial  No.  3615).  A  digest 
of  the  principal  arguments  in  favor  of  direct  leg- 
islation. 

Post,  Louis  F.  The  Initiative  and  Referendum.  Pro- 
ceedings of  the  National  Municipal  League,  1906, 
pp.  363-381.  An  outline  of  the  development  of 
direct  legislation  in  America. 

Ringwalt,  R.  C.  Briefs  on  Public  Questions.  New 
York  and  London,  1905,  pp.  50-52,  55.  Con- 
tains a  summary  of  the  chief  popular  arguments 
for  and  against  direct  legislation.  Of  particular 
value  to  debating  teams. 

Smith,  J.  A.  The  Spirit  of  American  Government. 
New  York,  1907.  A  brief  general  survey  of  the 
initiative,  referendum  and  recall  is  contained  in 
chapter  xiii. 

*Stimson,  Frederick  J.  Popular  Law-making.  New 
York,  1910. 

.347 


THE   INITIATIVE,   REFERENDUM   AND   RECALL 

Sullivan,  J.  W.  Direct  Legislation  through  the  Ini- 
tiative and  Referendum.  New  York,  1893.  A 
forceful  presentation  of  the  case  for  direct  legis- 
lation, now  somewhat  old,  but  still  useful. 

*U'Ren,  W.  S.  The  Results  of  the  Initiative  and  Ref- 
erendum in  Oregon.  Proceedings  of  the  Ameri- 
can Political  Science  Association,  1907.  Vol.  iv, 
pp.  193-197- 


APPENDIX 


A  LIST  OF  THE  MEASURES  SUBMITTED  TO  THE  PEOPLE  OF 
OREGON  IN  THE  LAST  FOUR  ELECTIONS. 


1904. 
Direct  primary  law  with  direct  selection  of  United  States 

senator' 

Local-option  liquor  law' 

1906. 

Omnibus  appropriation  bill,  state  institutions^ 

Equal-suffrage  constitutional  amendment' 

Local-option  bill  proposed  by  liquor  people' 

Bill  for  purchase  by  state  of  Barlow  toll  road' 

Amendment  requiring  referendum  on  any  act  calling  con- 
stitutional convention' 

Amendment  giving  cities  sole  power  to  amend  their  charters 

Legislature  authorized  to  fix  pay  of  state  printer' 

Initiative  and  referendum  to  apply  to  all  local,  special  anr' 
municipal  laws' 

Bill  prohibiting  free  passes  on  railroads' 

Gross-earnings  tax  on  sleeping,  refrigerator  and  oil  -  ca 
companies' 

Gross-earnings  tax  on  express,  telephone  and  telegraph 
companies' 

1908. 

Amendment  increasing  pay  of  legislators  from  $120  to  S400 
per  session' 

Amendment  permitting  location  of  state  institutions  at 
places  other  than  the  capital' 

Amendment  reorganizing  system  of  courts  and  increasing 
supreme  judges  from  three  to  five' 

Amendment  changing  general  election  from  June  to  Novem- 
ber'  

Bill  giving  sheriffs  control  of  county  prisoners^ 

Railroads  required  to  give  public  officials  free  passes^ 

Bill  appropriating  $100,000  for  armories^ 

Bill  increasing  fixed  appropriation  for  State  University  from 
$47,500  to  $125,000  annuallyz 

Equal-suffrage  amendment' 

Fishery  bill  proposed  by  fish-wheel  operators' 

Fishery  bill  proposed  by  gill-net  operators' 

Amendment  giving  cities  control  of  liquor  selling,  pool 
rooms,  theaters,  etc.,  subject  to  local -option  law' 

Modified  form  of  single-tax  amendment' 

Recall  power  on  public  officials' 

Bill  instructing  legislators  to  vote  for  people's  choice  for 
United  States  senators' 

Amendment  authorizing  proportional-representation  law' .  . 

Corrupt-practices  act  governing  elections' 

Amendment  requiring  indictment  to  be  by  grand  jury' .... 

Bill  creating  Hood  River  County' 

1910. 

Amendment  permitting  female  taxpayers  to  vote' 

Act  establishing  branch  insane  asylum  in  eastern  Oregon*.  . 


56.205 
43,316 

16,354 
40.198 

43.918 
36.902 
35.297 
31.525 

26,758 
47,075 
45,144 
44,527 

47.661 

52.567 
63,749 

18,751 

19,852 

9,571 

47,678 
57,281 

16.735 
16,779 

69,635 

6.441 

70.872 

6.360 

19.691 

41.971 

30.243 

65.728 
60.443 
28.856 
33,507 

44,115 

,36.858 
46,582 
56.130 

39.442 
32.066 
58.381 

69.668 

48.868 
54,042 
52,214 
43.948 


35.270 
50,134 


No. 


68,892 

40,868 

50,591 

18,590 
30,033 
50,406 
54,848 

40.535 
58.670 
40.720 
30,280 

52,346 
60.871 
31,002 

21,162 
34.128 
31.301 
28,487 
26.778 


59.065 
41,504 


'  Submitted  under  the  initiative. 

'  Submitted  under  the  referendum  upon  legislative  act. 

•  Submitted  to  the  people  by  the  legislature. 


349 


APPENDIX 


191 0 — Continued. 

Act  calling  convention  to  revise  state  constitution' 

Amendment  providing  separate  district  for  election  of  each 
state  senator  and  representative' 

Amendment  repealing  requirement  that  all  taxes  shall  be 
equal  and  uniform^ 

Amendment  permitting  organized  districts  to  vote  bonds  for 
construction  of  railroads  by  such  districts' 

Amendment  authorizing  collection  of  state  and  county 
taxes  on  separate  classes  of  property' 

Act  requiring  Baker  County  to  pay  $1,000  a  year  to  circuit 
judge  in  addition  to  his  state  salary^ 

Bill  creating  Nesmith  County  from  parts  of  Lane  and 
Douglas! 

Bill  to  establish  a  state  normal  school  at  Monmouth* 

Bill  creating  Otis  County  from  parts  of  Harney,  Malheur, 
and  Grant' • 

Bill  annexing  part  of  Clackamas  County  to  Multnomah".. 

Bill  creating  Williams  County  from  parts  of  Lane  and 
Douglas' 

Amendment  permitting  people  of  each  county  to  regulate 
taxation  for  county  purposes  and  abolishing  poll  taxes'.  . 

Amendment  giving  cities  and  towns  exclusive  power  to  regu- 
late liquor  traffic  within  their  limits' 

Bill  for  protection  of  laborers  in  hazardous  employment, 
fixing  employers'  liability,  etc' 

Bill  creating  Orchard  County  from  part  of  Umatilla' 

Bill  creating  Clark  County  from  part  of  Grant' 

Bill  to  establish  state  normal  school  at  Weston' 

Bill  to  annex  part  of  Washington  County  to  Multnomah'.  . 

Bill  to  establish  state  normal  school  at  Ashland'. 

Amendment  prohibiting  liquor  traffic' 

Bill  prohibiting  sale  of  liquor,  providing  for  search  for 
liquors,  and  regulating  shipments  of  same' 

Bill  creating  board  to  draft  employers'  liability  law  for  sub- 
mission to  legislature' 

Bill  prohibiting  taking  of  fish  in  Rogue  River  except  with 
hook  and  line' 

Bill  creating  Deschutes  County  out  of  part  of  Crook' 

Bill  for  general  law  under  which  new  counties  may  be  created 
or  boundaries  changed' 

Amendment  permitting  counties  to  vote  bonds  for  per- 
manent road  improvement' _. _.  . 

Bill  permitting  voters  in  direct  primaries  to  express  choice 
for  president  and  vice-president,  to  select  delegates  to 
national  conventions,  and  nominate  candidates  for  presi- 
dential electors' 

Bill  creating  board  of  people's  inspectors  of  government, 
providing  for  reports  of  board  in  official  state  gazette  to  be 
mailed  to  all  registered  voters  bi-monthly' 

Amendment  extending  initiative  and  referendum,  making 
terms  of  members  of  legislature  six  years,  increasing 
salaries,  requiring  proportional  representation  in  legis- 
lature, election  of  speaker  of  house  and  president  of  senate 
outside  of  members,  etc' 

Amendment  permitting  three-fourths  verdict  in  civil  cases' 


37,031 
44,538 


No. 


23,143 

59,974 

24,000 

54,252 

37,619 

40,172 

32,844 

46,070 

31,629 

41,692 

13,161 

71,503 

22,866 
50,191 

60,951 
40,044 

17,426 
16,250 

62,016 
69,002 

14,508 

64,090 

44,171 

42,127 

53.321 

50,779 

56,258 
15,664 
15,613 
40,898 
14,047 
38,473 
43,540 

33,943 
62,712 
61,704 
46,201 
68,221 
48,655 
61,221 

42,651 

63,564 

32,224 

51.719 

49,712 
17,592 

33,397 
60,486 

37,129 

42,327 

51.275 

32,906 

43,353 

41,624 

29.955 

52,538 

44,366 
39,399 


'  Submitted  under  the  initiative. 

2  Submitted  under  the  referendum  upon  legislative  act. 

'  Submitted  to  the  people  by  the  legislature. 


350 


INDEX 


Advisory  initiative  and  refer- 
endum, in  Illinois,  96,  97 ;  in 
Detroit,  97 ;  in  Grand  Rapids, 
98 ;  in  Buffalo,  99 ;  in  Chi- 
cago, 99;  in  Canada,  100;  in 
Augusta,  Maine,  loi  ;  in  Ar- 
kansas, loi  ;  in  various  other 
states,  101 ;  in  Wilmington, 
Delaware,  101-103. 

Alameda,  California,  direct 
legislation  in,  110-112,  115- 
116;  use  of  the  recall  in,  116. 

Alexander,  Mayor,  Mayor 
Harper  replaced  by,  in  Los 
Angeles,  324,  325. 

Arizona,  doctrine  of  referen- 
dum in,  135 ;  proposed  adop- 
tion of  the  recall  in,  182; 
presidential  veto  of  state- 
hood bill  in,  211,  212. 

Arkansas,  direct  legislation  in, 

154- 
Augusta,  Maine,  provisions  for 
special    direct    legislation    in, 

lOI. 

Berkeley,  California,  move- 
ment for  direct  legislation  in, 
123;  initiative  and  referen- 
dum established  by,  154. 

Berne,  Canton  of,  in  Switzer- 
land, percentage  of  regis- 
tered votes  polled  in,  32,  157. 

Bonds,  municipal,  use  of  the 
referendum  for  the  approval 
of,  7- 


Borrowing,  municipal,  the  ref- 
erendum as  a  check  upon,  39. 

Boston,  provisions  regarding 
nomination  petitions  in  char- 
ter of,  30;  statistics  of  votes 
on  referenda  in,  43 ;  recall 
election  in,  45,  46;  provisions 
in  charter  of,  concerning  re- 
call of  mayor,  49,  50,  307, 
308. 

Boundaries,  municipal,  use  of 
referendum  in  determining 
changes  of,  7. 

Bourne,  Jonathan,  Jr.  :  A 
Defence  of  Direct  Legis- 
lation, 194-210 :  the  essen- 
tials of  popular  government, 
194,  195  ;  differences  between 
individual  and  community 
action,  195 ;  the  interaction 
of  community  motives,  196; 
the  utilitarian  justification  of 
direct  legislation,  197;  ex- 
amples, 198,  199;  the  Colum- 
bia River  fisheries  matter, 
200,  201  ;  effect  of  direct  leg- 
islation upon  representatives, 
202;  educational  value  of  the 
initiative  and  referendum, 
203 ;  new  arrangements  not 
incompatible  with  a  sound 
representative  system,  204, 
205;  the  experience  of  Ore- 
gon, 206-211;  the  presiden- 
tial veto  of  the  Arizona 
statehood  bill  discussed,  212, 


351 


INDEX 


213;  value  of  the  recall,  213, 
214;  conclusions,  215. 

Bradford,  E.  S.,  on  signatures 
required  for  initiative  peti- 
tions in  commission-gov- 
erned cities,   14. 

British  Columbia,  use  of  the 
advisory  referendum  in,   100. 

Brookline,  Massachusetts,  as  a 
type  of  New  England  town, 
24. 

Bryce,  James,  on  the  failures 
of  city  government  in  Amer- 
ica, 93 ;  on  the  success  of 
democracy  in  Switzerland, 
155;  on  the  American  consti- 
tution, 257. 

Buffalo,  use  of  the  advisory  in- 
itiative in,  99. 

Burke,  Edmund,  on  the  func- 
tion of  a  representative,  28 ; 
on  the  difference  between 
statesmen  and  politicians, 
183,   184. 

California,  conditions  in,  prior 
to  1909,  21  ;  adoption  of  re- 
call in,  43,  45 ;  home-rule 
charter  movement  in,  95 ;  use 
of  advisory  referendum  in, 
loi ;  direct  legislation  in 
cities  of,  107-116;  use  of  re- 
call in,  116;  operation  of  in- 
itiative and  referendum  in, 
154;  recall  of  officials  in 
cities  of,   315-325- 

Canada,  use  of  advisory  refer- 
endum in,  100. 

Catlett,   Fred   W.  ;   The   Re- 


call IN  Seattle,  326-341 : 
adoption  of  recall  provision 
in  Seattle  charter,  326;  re- 
call petitions,  2^2"] ;  defects  of 
original  system,  328 ;  method 
of  gathering  signatures,  329 ; 
verification  of  signatures, 
330;  withdrawals,  331;  the 
Gill  and  Dilling  recall  peti- 
tions compared,  332-334 ;  the 
recall  of  Mayor  Gill,  335- 
2i2>7 ;  the  attempted  recall  of 
Mayor  Dilling,  338,  339;  con- 
clusions, 340,  341. 

Cedar  Rapids,  Iowa,  adoption 
of  initiative  and  referendum 
by,  120. 

Charters,  municipal,  use  of  ref- 
erendum as  a  means  of 
adopting,  7. 

Chicago,  difficulty  of  getting 
proper  legislation  for,  21  ; 
use  of  advisory  initiative  and 
referendum  in,  99 ;  Civic 
Federation  of,  attitude  of,  on 
direct  legislation,  279. 

Citizens'  Recall  Association,  in 
Seattle,  338. 

Cleveland,  use  of  referendum 
to  prevent  grant  of  franchise 
in,  104. 

Colorado,  home-rule  charter 
movement  in,  95 ;  adoption  of 
referendum  by,  135;  direct 
legislation  established  in,  154. 

Columbia  River,  questions  re- 
lating to  salmon  fisheries  in, 
173 ;  submitted  to  popular 
vote,  200;  as  an  example  of 


352 


IXDEX 


matters  passed  upon  at  direct 
elections,  286. 

Commission  government,  rela- 
tion of,  to  direct  legislation, 
13 ;  use  of  initiative  petitions 
in  cities  under,  14;  adoption 
of  recall  in  cities  having.  43 ; 
use  of  initiative  and  referen- 
dum facilitated  by,  1 18-122. 

Connecticut,  adoption  of  amend- 
ments to  constitution  of,  by 
referendum,  128. 

Constitutional  limitations,  rela- 
tion of,  to  legislative  de- 
terioration,  18,  25. 

Conventions,  results  of  nomi- 
nations in,  17. 

Corrupt  Practices  Acts,  as  part 
of  a  progressive  programme, 
54;  adopted  in  Oregon,  144, 
145,  228. 

Councils,  municipal,  reduction 
in  size  of,  as  an  important 
reform,  20. 

Croly,  Herbert,  on  the  new  na- 
tionalism,  52. 

Dallas,  Texas,  direct  legisla- 
tion in,  119;  recall  of  school 
directors    in,   303,   304. 

Danville,  Illinois,  election 
frauds  in,  207. 

Davis,  Thomas  A. :  The  Re- 
call AS  a  Measure  ok  Pop- 
ular Control,  313-320:  con- 
ditions in  American  cities 
before  the  appearance  of  the 
recall,  313;  the  recall  in  Los 
Angeles,  314,  315;  is  the  re- 


call fair?  316,  317;  the  need 
of  the  recall  in  New  Jersev, 
318. 

Dealey,  J.  Q.,  on  general  ten- 
dencies in  state  constitutions, 
18. 

Defence  of  Direct  Legisla- 
tion, by  Jonathan  Bourne, 
Jr.,  194-210. 

Democratic  party,  the  present 
opportunity  of,  83,  84. 

Delegates,  election  of,  to  na- 
tional conventions,  by  popu- 
lar vote,  173,  174. 

Delegation  of  legislative 
powers,  constitutional  objec- 
tions to  the  referendum  as 
a,  8. 

Denison,  Texas,  referendum 
and  recall  in,  119. 

Denver,  direct  legislation  in, 
118,    ISO,    151. 

Des  Moines,  adoption  of  com- 
mission government  in,  13; 
direct  legislation  established 
by,  120,  154;  form  of  ballots 
in,  125 ;  threatened  use  of  re- 
call in,  301,  302. 

Detroit,  use  of  advisory  refer- 
endum in,  97. 

Development  of  Direct  Leg- 
islation IN  America,  by 
Robert  Treat  Paine,  93-124. 

Dilling,  Mayor,  attempted  re- 
call of,  in  Seattle,  338-340. 

Direct  legislation.  Sec  Initia- 
tive and  Referendum. 

Direct  primaries,  their  relation 
to  other  reforms,  54,  55. 


.353 


INDEX 


Education,  political,  value  of 
direct  legislation  as  a  means 
of,  21,  24,  203,  221,  222;  op- 
portunities for,  in  Oregon, 
211. 

El  Paso,  use  of  the  referendum 
in,  119. 

Emergency  laws,  excluded 
from  scope  of  initiative,    11. 

Employees,  municipal,  attitude 
of,  to  the  referendum,  38. 

Employers'  liability,  action  of 
Oregon  voters  on  proposals 
concerning,  263,  264. 

Estacada,  Oregon,  use  of  the 
recall  in,  303. 

Eureka,  California,  use  of  the 
•  initiative  and  referendum  in, 
110-112. 

Experts,  municipal,  relation  of 
recall  to  question  of,  48. 

Fawcett,  Mayor,  recall  of,  in 
Tacoma,  309. 

Fisheries,  in  Columbia  River, 
questions  submitted  to  voters 
concerning.  See  Columbia 
River. 

Folk-Moot,  Anglo-Saxon,  meth- 
ods  of  direct   legislation   in, 

153- 
Ford,  Henry  J.,  on  powers  of 

party  bosses,  79. 
Fort  Worth,  Texas,  use  of  the 

referendum  in,   1 19 ;   attempt 

to  recall  a  commissioner  in, 

302. 
Franchises,    the    grant    of,    by 

referendum,   7;    direct   legis- 


lation in  its  relation  to,  ii; 
attitude  of  voters  at  refer- 
enda concerning,  37 ;  use  of 
initiative  and  referendum  in 
making  grants  of,  104,  223. 

Fresno,  California,  direct  leg- 
islation in,  108,  hi;  use  of 
recall  in,  116. 

Fribourg,  Canton  of,  in  Swit- 
zerland, absence  of  initiative 
and  referendum  in,  156,  157. 

Galveston,  adoption  of  com- 
mission government  in,  13 ; 
use  of  the  referendum  in, 
118,  119. 

Geneva,  Illinois,  advisory  in- 
itiative in,  96,  97. 

Georgia,  recognition  of  initia- 
tive in  first  constitution  of,  5. 

Gill,  Mayor,  recall  of,  in  Se- 
attle, i29>-52,7. 

Gloucester,  Massachusetts,  rec- 
ognition of  direct  legislation 
in  new  charter  of,  122,  154. 

Grand  Junction,  Colorado,  pro- 
visions for  direct  legislation 
in  charter  of,  154. 

Grand  Rapids,  Michigan,  ad- 
visory initiative  and  referen- 
dum in,  98. 

Greenville,  Texas,  referendum 
and  recall  established  in,  119. 

Harper,  Mayor,  recall  of,  in 
Los  Angeles,  303,  323-3^5- 

Hartwell,  E.  M.,  on  referenda 
in  ]\Iassachusetts,  2>?)<  34- 

Haverhill,  Massachusetts,  pro- 


354 


INDEX 


visions   for   direct  legislation 
in   new   charter  of,   122,   154. 

Haynes,  George  H.  :  A  Year 
OF  THE  People's'  Rule  in 
Oregon,  233-278:  prepara- 
tions for  the  general  election 
of  1910,  2T^s ;  publicity  en- 
gineering, 234 ;  the  People's 
Power  League,  235 ;  ex- 
amples of  measures  sub- 
mitted, 235-240 ;  analysis  of 
chief  proposals,  241-249;  the 
campaign  of  1910,  249-253; 
the  campaign  book,  254,  255 ; 
effect  of  Corrupt  Practices 
Law  in  Oregon,  256 ;  size  of 
ballot,  257;  results  of  voting 
on  different  measures,  258- 
273  ;  general  conclusions,  274- 
278. 

HoLMAN,  Frederick  V.:  The 
Unfavorable  Results  of  Di- 
rect Legislation  in  Ore- 
gon, 279-297 :  political  prob- 
lems of  Oregon,  279;  Ore- 
gon's lessons  for  other  states, 
280,  281  ;  ten  years  of  direct 
legislation,  282;  its  short- 
comings, 282,  283 ;  size  of 
votes  polled,  284,  285;  ex- 
amples of  measures  sub- 
mitted to  the  people,  286 ;  the 
case  of  the  University,  287, 
288;  the  single-tax  proposal, 
288,  289;  other  proposals, 
290,  291 ;  virtual  abolition  of 
trial  by  jury,  291-294;  cum- 
brous nature  of  ballots,  295 ; 
summary  of  results,  296,  297. 


Home-rule  charters,  adoption 
of,  by  referendum,  in  Mis- 
souri, 95;  in  California  and 
other  states,  95. 

I  louston,  Texas,  provision  for 
referendum  in  charter  of,    1 19. 

Illinois,  provisions  relating  to 
advisory  referendum  in,  12, 
96)  97 ;  public  opinion  law  in, 
99 ;  proposals  to  adopt  man- 
datory initiative  and  referen- 
dum in,  281,  282. 

Indiana,  adoption  of  advisory 
initiative  by,  loi  ;  popular 
approval  of  public  service 
franchises  required  by  laws 
of,    104. 

Initiative  and  Referendum, 
definition  and  early  history 
of,  1-6;  development  of,  in 
the  United  States,  7-15;  ex- 
tension of,  to  cities,  97-100; 
use  of,  in  recent  years,  235- 
256 ;  part  of  Progressive  pro- 
gramme, 54-64- 

Arguments  for:  general, 
18-24 ;  an  effective  agency  of 
popular  responsibility,  85- 
90;  not  antagonistic  to  rep- 
resentative government,  146- 
149;  voters  will  not  act  hast- 
ily, 196-198;  examples  of  im- 
provements secured  by  use  of, 
199-201  ;  as  a  check  on  self- 
ish legislation,  202 ;  as  an 
agency  of  political  educa- 
tion, 203 ;  secures  protection 
against    insincere    legislation. 


355 


INDEX 


210;  relieves  legislatures 
from  pressure  of  political 
bosses,  219;  alleged  defects 
are  easily  remedied,  230 ;  char- 
acter of  the  measures  actu- 
ally submitted,  238-242;  the 
experience  of  Oregon  has 
been    satisfactory,    2']y2']%. 

Arguments  against:  gen- 
eral, 25-42 ;  contrary  to  prin- 
ciples of  representative  gov- 
ernment, 166-169;  will  lower 
the  plane  of  popular  repre- 
sentation, 27,  178;  places  too 
great  a  burden  on  the  ballot, 
29,  30,  221,  222;  does  not 
weaken  influence  of  political 
organizations,  31  ;  American 
experience  with  local  refer- 
enda, 33,  34,  295,  296;  does 
not  permit  a  full  expression 
of  electoral  opinion,  40,  284, 
285 ;  abolishes  distinction  be- 
tween constitutional  and  or- 
dinary laws,  41,  129,  130;  en- 
courages ill-considered  legis- 
lation, 221 ;  requires  improve- 
ment in  details,  223 ;  loose 
and  careless  phraseology  of 
measures  submitted,  282, 
283 ;  causes  delay  in  urgent 
matters,  287,  288;  has  been 
highly  unsatisfactory  in  Ore- 
gon, 289-295. 

Introductory,  by  W.  B.  Mun- 
RO,  1-51. 

Iowa,  adoption  of  recall  in,  43 ; 
initiative  and  referendum  on 
franchises  in,  103,  104;  rela- 


tion  of   direct   legislation    to 
commission     government    in, 
120. 
Issues  of   Reform,  by   Wood- 
row  Wilson,,  69-91. 

Jefferson,  Thomas,  political 
ideas  of,  163,   167. 

Johnson,  Lewis  Jerome:  Di- 
rect Legislation  as  an 
Ally  of  Representative 
Government,  139-163:  the 
need  of  political  reconstruc- 
tion, 139,  140;  the  funda- 
mental defect  of  modern 
legislative  mechanism,  140, 
141 ;  the  proper  channels  of 
popular  control,  141-143 ;  the 
Oregon  system,  144,  145 ;  not 
antagonistic  to  representative 
government,  146-149;  actual 
results  of  direct  legislation, 
150,  151 ;  what  the  system 
can  achieve,  151-153;  its  re- 
sults abroad,  154-158;  the 
problem  in  America,  159, 
160;  American  political  ideals 
as  stated  in  the  constitution 
of  Massachusetts,  161 ;  con- 
clusions,  162,   163. 

Judiciary,  proposed  recall  of, 
184-186.     See  also  Recall. 

Junction  City,  Oregon,  recall 
of  mayor  in,  303. 

Kansas,    advisory   initiative   in, 

lOI. 

Kansas  City,  home  rule  charter 
system  in,  94;  direct  legisla- 
tion and  the  recall  in,  122. 


356 


INDEX 


Labor,  organized,  attitude  of, 
to  direct   legislation,  38,  262. 

Laudcsgemcinde,  Swiss,  de- 
velopment of  direct  legisla- 
tion idea  in,  153. 

Leavenworth,  Kansas,  referen- 
dum in,  121. 

Legislatures,  decline  in  capacity 
of,  17;  lack  of  leadership  in, 
18;  present  prestige  of,  25; 
centralization  of  responsibil- 
ity in,  75  ;  proposed  reorgan- 
ization of,  as  exemplified  in 
Oregon,  244-246.  See  also 
Representative   Government. 

Lewiston,  Idaho,  establishment 
of  initiative  and  referendum 
in,  121 ;  recall  in,  305. 

Limitations,  constitutional.  See 
Constitutional   Limitations. 

Lincoln,  Abraham,  political 
ideas  of,  140,  167 ;  would 
have  been  subject  to  recall, 
184. 

Lincoln,  Nebraska,  referendum 
in,    105. 

Liquor  laws,  referenda  on,  t,t„ 
250,  251. 

Long  Beach,  California,  estab- 
lishments of  initiative  and 
referendum  in,  no,  in;  re- 
call  in,   n6. 

Los  Angeles,  adoption  of  recall 
in,  42 ;  recall  put  in  opera- 
tion by,  45 ;  initiative  and 
referendum  in,  io8-n4;  re- 
call of  Mayor  Harper  in, 
h6,  303,  321-325;  procedure 
m    filing    recall    petitions    in. 


314-316;    removal    of   a    mu- 
nicipal    councillor     in,     322, 

Lowell,  A.  L.\ whence  :  The 
Referendum  in  the  United 
States,  126-138:  the  adapta- 
tion of  an  institution  to  its 
enviromnent,  ij6;  the  early 
use  of  the  constitutional  ref- 
erendum in  Massachusetts, 
127;  its  spread  and  subse- 
quent development,  128;  its 
extension  to  ordinary  law- 
making, 129;  the  referendum 
in  actual  operation,  130-132; 
its  present  extent,  133-135; 
the  experience  of  Oregon, 
135-137;  the  value  of  Ameri- 
can experience,  138. 

McCall,  Samuel  W.  :  Repre- 
sentative AS  AGAINST  DiRECT 
Legislation,  164-193:  the 
novelty  of  direct  legislation 
proposals,  164;  the  "Progres- 
sive" propaganda,  165;  the 
political  ideas  of  Madison 
and  Jefferson,  166;  what 
the  framers  of  the  federal 
constitution  sought  to  do, 
167,  168;  the  essential  aims 
of  government,  168;  the  indi- 
vidual as  the  chief  end  of 
government,  169 ;  the  initia- 
tive analyzed,  170,  171 ;  the 
Oregon  experience,  172;  the 
Columbia  River  fisheries  eni- 
broglio  as  an  example,  173; 
relation   of   direct   legislation 


357 


INDEX 


to  the  rights  of  minorities, 
174;  general  shortcomings  of 
the  initiative,  175,  176;  limi- 
tations upon  a  free  use  of 
the  referendum,  176,  177;  its 
effect  in  removing  responsi- 
bility from  representatives, 
178;  the  political  indifference 
of  the  electorate,  179;  the 
vice  of  over-legislation,  180; 
the  recall,  181 ;  provisions 
relating  to  it  in  Arizona  and 
Oregon,  182;  its  pernicious 
features,  182-184;  the  recall 
of  judges,  185;  the  de- 
mocracy of  Athens,  186,  187 ; 
the  experience  of  Switzer- 
land, 189-191 ;  a  plea  for  sane 
methods  of  reform,  192,  193. 

Maine,  constitutional  amend- 
ments excluded  from  scope 
of  initiative  in,  10;  present 
arrangements  concerning  di- 
rect legislation  in,   106,   154. 

Maryland,  early  use  of  referen- 
dum in,  for  adoption  of  stat- 
utes, 6. 

Massachusetts,  adoption  of  con- 
stitution by  referendum  in, 
5;  statistics  of  voting  at  ref- 
erenda in,  33;  incorporation 
of  cities  by  referendum  in, 
92,  93 ;  provision  for  advis- 
ory initiative  in  constitution 
of,  loi  ;  use  of  referendum 
in,  in  making  constitutional 
amendments,  127,  131,  132; 
suggestion  of  recall  in  origi- 
nal constitution  of,  143. 


Memphis,  use  of  initiative  and 
referendum  on  municipal 
franchises   in,   104. 

Michigan,  home-rule  move- 
ment in  cities  of,  95 ;  advis- 
ory initiative  in,   loi. 

Mill,  John  Stuart,  on  popular 
responsibility,  22. 

Milwaukee,  movement  for  di- 
rect legislation  in,  123. 

Minnesota,  home-rule  move- 
ment in  cities  of,  95. 

Mississippi,  use  of  popular  in- 
itiative for  adoption  of  com- 
mission charters  in,  122. 

Missouri,  restrictions  on  use  of 
initiative  in,  10;  beginnings 
of  home-rule  charter  move- 
ment for  cities  in,  94;  refer- 
endum adopted  by,  135 ;  use 
of   direct  legislation  by,    154. 

Montana,  limitations  on  use  of 
initiative  petitions  in,  10; 
adoption  of  provisions  for 
direct     legislation     by,     106, 

135.  154- 
MuNRO,  W.  B. :  Introductory, 
1-51  :  significance  of  the  di- 
rect legislation  movement, 
I,  2;  reasons  for  its  spread, 
2-4;  early  examples  of  the 
initiative  and  referendum,  5, 
6;  use  of  the  constitutional 
referendum,  6-8 ;  application 
of  the  mandatory  referen- 
dum to  ordinary  laws,  9; 
machinery  of  direct  legisla- 
tion, 10,  11;  the  Illinois  sys- 
tem,  12;  use  of  direct  legis- 


358 


IXDEX 


lation  in  cities,  13,  14 ;  rela- 
tion of  the  system  to  repre- 
sentative government,  15-18; 
the  steady  reduction  in 
powers  of  legislatures.  19, 
20 ;  arguments  in  favor  of 
the  initiative  and  referendum, 
20-24 ;  arguments  against, 
24-32;  statistics  of  votes 
polled  at  referenda,  3;^,  34; 
nature  of  popular  interest  in 
referenda,  35,  36;  electoral 
tendencies,  36-39 ;  merits  and 
faults  of  direct  legislation  in 
practice,  40-42 ;  the  recall, 
42-50;  history  of  the  recall, 
42,  43 ;  machinery  of  the  re- 
call, 43-45 ;  the  recall  in 
operation,  44-46 ;  arguments 
for  and  against  the  recall, 
47-51- 

National  conventions,  election 
of  delegates  to,  by  popular 
vote,  55,  173,  174- 

Nationalism  and  Popular 
Rule,  by  Theodore  Roose- 
velt, 52-58. 

Nebraska,  direct  legislation  in, 
105. 

New  England,  direct  legisla- 
tion idea  in  town-meeting 
system  of,  153;  use  of  initia- 
tive and  referendum  in  cities 
of,  159-162. 

New  Hampshire,  provision  for 
instructing  representatives  in 
constitution  of,  5 ;  use  of  ad- 
visory     initiative      in,      loi  ; 


amendment     of     constitution 

by  referendum  in,   127. 
New      Jersey,      agitation      for 

adoption    of    recall    in,    316- 

318. 
New        Mexico,        referendum 

adopted  by,  on  admission  to 

statehood,  9,  135. 
Newport,    Rhode    Island,    sys- 
tem  of   city   government    in, 

122. 
New    York   City,    reduction    in 

powers  of  municipal  council 

in,  25,  26. 
Nevada,   advisory  initiative   in, 

121 ;  referendum  adopted  by, 

135- 

Nominations,  direct,  as  a  re- 
medial measure,  18;  prob- 
lems of  party  organization 
connected  with,  78-81. 

North  Carolina,  advisory  in- 
itiative in,   loi. 

North  Dakota,  direct  legisla- 
tion provisions  adopted  by, 
122. 

Norway,  democratic  frame  of 
government  in,  63. 

Oberholtzer,  E.  P.,  on  direct 
legislation,   129,   130. 

Ohio,  advisory  initiative  in, 
loi  ;  use  of  the  referendum 
in,  for  grant  of  franchises, 
104. 

Oklahoma,  requirement  for  in- 
itiative signatures  in,  1 1  ; 
provisions  against  frequent 
resubmission     of     the     same 


359 


INDEX 


question  to  voters  in  consti- 
tution of,  12;  adoption  of  re- 
call in,  43 ;  home  rule  for 
cities  of,  95 ;  initiative  and 
referendum  adopted  by,  106, 
107.  135;  issue  of  publicity- 
pamphlet  in,  144-146;  work- 
ing  of   direct    legislation    in, 

154- 

Omaha,  adoption  of  initiative 
and  referendum  by,  105. 

Oregon,  actual  use  of  direct 
legislation  in,  14,  15;  adop- 
tion of  recall  by  voters  of, 
43,  45,  182 ;  home-rule  move- 
ment in,  95 ;  direct  legisla- 
tion in,  106,  135-137.  176, 
177;  the  recall  arrangements 
in,  135;  Corrupt  Practices 
Act  of,  144,  145;  state  pub- 
licity pamphlets  of,  144-146; 
measures  adopted  by  direct 
legislation  in,  154,  189,  200, 
201,  204,  205,  217,  225-227. 
233  ff.,  258 ;  probable  results 
of  recall  arrangements  in, 
182 ;  statistics  of  referenda 
in,  215,  224,  285,  286;  extent 
of  representative  lawmaking 
in,  207 ;  analysis  of  measures 
submitted  to  voters  of,  225- 
227 ;  campaign  book  of,  236 ; 
People's  Power  League 
of,  235,  236;  constitutional 
amendment  relating  to  ju- 
dicial procedure  in,  237,  238; 
proposed  reconstruction  of 
legislature  in,  244-246;  direct 
legislation  literature  in,  254; 


action  of  voters  on  proposed 
employers'  liability  measure 
in,  263,  264;  on  taxation 
measures,  265-268;  summary 
of  results  of  direct  legisla- 
tion in,  273-278;  population 
and  political  problems  of, 
279;  matter  of  University  ap- 
propriations in,  287,  288; 
right  of  the  citizen  to  trial 
by  jury  impaired  by  popular 
vote  in,  289-295 ;  actual  use 
of  recall  in,  303 ;  application 
of  recall  to  judiciary,  305. 
Sec  also  Year  of  the  Peo- 
ple's Rule  in  Oregon  and 
Unfavorable  Results  of  Di- 
rect Legislation  in  Oregon. 

Paine,  Robert  Treat:  The 
Development  of  Direct  Leg- 
islation IN  America,  93- 
124 :  origin  of  the  referen- 
dum, 92 ;  its  relation  to 
American  theories  of  govern- 
ment, 93 ;  beginnings  in 
America,  94,  95 ;  the  advis- 
ory referendum,  96 ;  use  of 
the  referendum  in  cities,  97 ; 
votes  at  referenda  in  various 
cities,  98-100;  the  referendum 
in  state  constitutions,  loi ; 
referenda  on  ordinances  and 
franchises,  102-104;  spread 
of  direct  legislation  provi- 
sions in  city  charters,  104- 
lio;  initiative  petitions,  ill, 
112;  the  experience  of  Los 
Angeles,  112-114;  rise  of  di- 


360 


INDEX 


rect  legislation  in  other  Cali- 
fornia cities,  115,  116;  in 
Oregon  and  Washington, 
116,  117;  in  Iowa,  Idaho  and 
other  states,  118-121;  in 
Massachusetts,  122 ;  the 
Newport  plan,  123 ;  merits  of 
the  system,   124,  125. 

Pamphlets.      See   Publicity. 

Parties,  political,  desirability 
of,  in  the  conduct  of  repre- 
sentative government,  76,  "/"] ; 
nominating  machinery  pro- 
vided by,  78;  realignment  of, 
83,  84. 

Pasadena,  California,  direct 
legislation  in,  110-112;  recall 
in,  116. 

Pennsylvania,  provisions  for 
instructing  representatives  in 
the  constitution  of,  5 ;  pres- 
ent legislative  conditions  in, 
21  ;  advisory  initiative  in,  loi. 

People's  Power  League,  in 
Oregon,  work  of,  for  direct 
legislation,  235,  236. 

Petitions,  percentage  of  signa- 
tures required  for  initiative, 
in  South  Dakota,  9;  in  Ok- 
lahoma, 11;  in  various  cities, 
14,  in;  difficulty  of  gather- 
ing signatures  for,  29,  30; 
for  setting  the  recall  in  oper- 
ation, 43,  305-307;  proper 
number  of  signatures  for, 
223 ;  method  of  obtaining  sig- 
natures for,  282 ;  withdrawal 
of  signatures  from,  331  ;  the 
experience   of   Seattle  in  the 

24  361 


matter       of       supplementing 
number  of  signatures  on,  332. 

Plymouth.  Colony  of,  direct 
legislation  idea  in,  153. 

Portland,  Oregon,  direct  legis- 
lation in,  117,  150,  218;  sta- 
tistics of  referenda  in,  228, 
229. 

Pr.\ctical  Workings  of  the 
Initiative  and  Referendum 
IN  Oregon,  by  Joseph  N. 
Teal,  217-232. 

Progressive  part)',  program 
of,  53,  54,  64. 

"Promise  of  American  Life," 
by  Herbert  Croly,  52. 

Proportional  representation, 
proposed  in  Oregon,  243,  244. 

Public  Opinion  Law,  in  Illi- 
nois, 99. 

Public  Welfare  League,  of  Se- 
attle, work  of,  in  checking 
signatures,  },t,},  ;  part  of,  in 
recall  elections,  336. 

Publicity,  method  of,  at  di- 
rect legislation  elections,  11; 
arguments  for  and  against 
submitted  questions  issued 
in  pamphlet  form,  23 ;  value 
of,  203 ;  various  means  of  se- 
curing, 208;  experience  in 
the  matter  of,  in  Oregon,  233, 
234,  254. 

Recall,  definition  of,  i  ;  origin 
of,  42,  298 ;  development  of, 
in  America,  43;  machinery 
of,  44;  actual  use  of,  in 
America,    45,    301-304,    iiy 


INDEX 


325;  as  applied  to  the  ju- 
diciary, 88,  184-186;  in  Cali- 
fornia cities,  116,  117;  in  Ore- 
gon, 117,  205;  as  applied  to 
administrative  officials,  in 
Washington,  118;  in  Massa- 
chusetts, 143 ;  in  Arizona, 
182 ;  provisions  relating  to, 
in  the  Articles  of  Confedera- 
tion, 298;  provisions  against 
the  re-election  of  recalled  of- 
ficials, 310;  constitutionality 
of,  321  ;  used  successfully  in 
Los  Angeles,  323-325 ;  in  Se- 
attle, 326-341. 

Arguments  for:  enforces 
official  responsibility,  46,  47; 
allows  lengthening  of  official 
terms,  48 ;  not  likely  to  be 
used  injudiciously,  198;  does 
not  result  in  frequent  elec- 
tions, 213;  analogy  of  office- 
holding  to  private  employ- 
ment, 214,  215;  its  beneficial 
results  as  shown  by  experi- 
ence, 298-302,   312-315. 

Arguments  against:  detri- 
mental effect  upon  public  of- 
ficials, 48,  182,  183;  probable 
effect  of,  at  critical  periods, 
in  American  history,  184;  as 
stated  in  presidential  veto  of 
Arizona  Statehood  Bill,  212; 
its  expensiveness,  311;  the 
difficulties  to  which  it  leads 
in  operation,  326-340. 
Recall,  as  a  Measure  of  Pop- 
ular Control,  by  Thomas 
A.  Davis,  313-320. 


Recall  in  Los  Angeles,  by 
Charles    D.    Willard,    321- 

325- 

Recall  in  Seattle,  by  Fred 
W.  Catlett,  326-341. 

Recall,  Use  of,  in  the  United 
States,  by  Herbert  H. 
Swan,  298-312. 

Referendum.  See  Initiative 
and    Referendum. 

Referendum  in  the  United 
States,  by  A.  Lawrence 
Lowell,  126-138. 

Representative  as  against 
Direct  Legislation,  by  Sam- 
uel McCall,  164-193. 

Representative  government,  re- 
lation of,  to  initiative  and 
referendum,  1-4;  difficulties 
in  the  way  of  legislation 
under,  21,  22;  true  nature  of, 
according  to  Edmund  Burke, 
28;  relation  of  recall  to,  47; 
relation  of,  to  voters,  60,  61 ; 
possible  effect  of  direct  leg- 
islation on,  147,  148,  165-168, 
203,  204,  231,  232. 

Riverside,  California,  direct 
legislation  in,  110-112,  115; 
recall  in,   116. 

Roosevelt,  Theodore  :  Na- 
tionalism and  Popular 
Rule,  52-68:  the  meaning  of 
nationalism,  52,  53 ;  the  need 
for  a  progressive  national 
policy,  53,  54;  a  programme 
of  progress,  54,  55  ;  the  value 
of  the  initiative  and  referen- 
dum,   56-58;    the    experience 


362 


INDEX 


of  Oregon,  59 ;  the  faults  of 
representative  legislation  in 
practice,  60-62 ;  the  lessons 
of  history,  63,  64 ;  the  ends 
whicli  direct  legislation  will 
achieve,  65-68. 

Sacramento,  California,  direct 
legislation  in,  110-112. 

San  Antonio,  Texas,  referen- 
dum in,  119. 

San  Bernardino,  California,  re- 
call of  councilmen  in,  303 ; 
direct  legislation  in,  no,  iii; 
recall  in,   116. 

San  Diego,  California,  direct 
legislation  and  recall  adopted 
by,   no,   ni,   n6,   117. 

San  Francisco,  initiative  and 
referendum  in,  107,  108,  ni; 
recall  in,   ri6. 

Santa  Cruz,  California,  direct 
legislation  in,  1 10- n2;  recall 
adopted  by,   n6. 

Santa  Monica,  California,  di- 
rect legislation  and  recall  es- 
tablished in,  no-n2,  116. 

Seattle,  use  of  recall  in,  44,  45, 
117,  n8,  304.  326-341. 

Senators,  popular  election  of, 
54,  55.  66,  67. 

Sioux  City,  Iowa,  direct  legis- 
lation and  recall  established 
in,   120. 

Sioux  Falls,  South  Dakota,  in- 
itiative, referendum  and  re- 
call adopted  in  charter  of, 
121. 


Sources  and  Liter.ature,  342- 

347- 
South  Dakota,  initiative  and 
referendum  first  applied  to 
ordinary  laws  in,  9 ;  restric- 
tions on  use  of  initiative  pe- 
titions in,  10;  adoption  of 
recall  by,  43  ;  nature  of  bal- 
lot used  in,  136;  experience 
of,    with    direct    legislation, 

154- 

Spokane,  Washington,  refer- 
endum in,  n8. 

St.  Joseph,  Missouri,  agitation 
for  direct  legislation  in,  123; 
nature  of  recall  procedure  es- 
tablished by,  305. 

St.  Louis,  experience  of,  as  a 
home-rule   charter  city,  94. 

Statutes,  multiplication  of,  by 
use  of  the  initiative,  191,  192. 

Sw.^N,  Herbert  S.  :  The  Use 
OF  THE  Recall  in  the 
United  States,  298-312:  ori- 
gin of  the  recall,  298;  theory 
on  which  its  use  rests,  299; 
the  infidelity  of  representa- 
tives, 300;  value  of  the  re- 
call, 301  ;  does  not  interfere 
witli  efficient  officers,  302; 
use  of  the  recall,  in  San  Ber- 
nardino and  Los  Angeles, 
303 ;  other  examples,  303- 
305 ;  safeguards  surrounding 
the  recall,  306,  307;  recall 
machinery,  307,  308;  the  fill- 
ing of  unexpired  terms,  309, 
310;  objections  to  the  recall, 
311;    its    service    in    iin])rov- 


363 


INDEX 


ing  municipal  government, 
312. 
Switzerland,  early  experience 
with  referendum  in,  31,  32; 
compulsory  voting  in  cantons 
of,  32 ;  origin  of  recall  in, 
42;  results  of  direct  legisla- 
tion in,  59,  154;  as  a  suc- 
cessful democracy,  155-158, 
189-191. 

Tacoma,  Washington,  use  of 
recall  in,  304 ;  removal  of 
Mayor    Fawcett   in,   309. 

Taxation,  action  of  electorate 
in  matters  of,  288,  289. 

Teal,  Joseph  N.  (of  Portland, 
Oregon)  :  The  Practical 
Workings  of  the  Initiative 
AND  Referendum  in  Oregon, 
217-232;  beginnings  of  agita- 
tion for  direct  legislation  in 
Oregon,  217 ;  adoption  of 
the  system,  217,  218;  exten- 
sion to  cities,  218;  reasons 
for  favorable  action,  219; 
objections  to  direct  legisla- 
tion stated  and  answered, 
220,  221 ;  changes  suggested 
in  system,  222,  223 ;  illustra- 
tion of  measures  submitted, 
224;  nature  of  proposals  de- 
feated, 225,  226;  nature  of 
proposals  adopted,  227,  228; 
municipal  ordinances  sub- 
mitted in  Oregon,  228,  229; 
general  workings  of  system, 
230,  231 ;  its  relation  to  rep- 
resentative  government,  232. 


Tennessee,  advisory  initiative 
in,  loi. 

Texas,  use  of  referendum  on 
matters  of  party  policy  by, 
12;  direct  legislation  in,  no, 
III. 

Toronto,  Canada,  use  of  ad- 
visory referendum  by,   100. 

Town  government,  in  New 
England,  the  referendum  as 
an  essential  feature  of,  24, 
63,  72. 

Unfavorable  Results  of  Di- 
rect Legislation  in  Oregon, 
by  Frederick  J.  Holman, 
279-297. 

Use  of  the  Recall  in  the 
United  States,  by  Herbert 
S.  Swan,  298-312. 

Utah,  adoption  of  initiative 
and  referendum  in,  9,  135. 

Vallejo,  California,  initiative 
in,   108,   in;  recall  in,  116. 

Vanderburg,  Senator,  resolu- 
tion introduced  in  Oregon 
legislature  by,  217. 

Vermont,  advisory  initiative  in, 

lOI. 

Victoria,  British  Columbia,  use 
of  referendum  in,   100. 

Vidette,  The,  its  early  ad- 
vocacy of  direct  legislation 
in  Oregon,  217. 

Voters'  League,  of  Los  An- 
geles, 113. 

Voting,  preferential,  20. 


364 


INDEX 


Waco,  Texas,  use  of  referen- 
dum in,  119. 

Washington,  state  of,  adoption 
of  recall  in,  43,  118;  direct 
legislation  in,  117,  118;  mu- 
nicipal officials  recalled  in, 
304. 

Wichita,  Kansas,  referendum 
provision  in,  121. 

Wilmington,  Delaware,  provi- 
sions for  initiative  and  refer- 
endum in,   101-103. 

Wilson,  WooDRow  :  The  Issues 
OF  Reform,  69-91  :  deteriora- 
tion of  representative  ma- 
chinery, 69,  70;  old  formulas 
of  government,  71,  "jz;  the 
irresponsibility  of  governing 
organs,  73,  74;  the  absence 
of  real  legislative  leadership, 
75;  public  opinion  and  po- 
litical parties,  71-77;  defects 
of  present-day  nominating 
machinerj',  78,  79 ;  bossism 
in  politics,  80;  the  American 


political  awakening,  81,  82; 
the  opportunity  it  affords,  83, 
84;  the  remedies,  85,  86;  di- 
rect legislation  as  an  effec- 
tive agency  of  popular  re- 
sponsibility, 87 ;  the  recall, 
88;  the  curbing  of  privilege, 
89,  90. 

On  merits  of  direct  legisla- 
tion, 174,  175. 

Winnetka,  Illinois,  sj'stem  of 
pledging  candidates  in,  96. 

Wisconsin,  progressive  legisla- 
tion in,  54;  use  of  initiative 
in,  122,   123. 

Woman  suffrage,  in  Oregon, 
253 ;  effect  of,  in  Seattle,  2>2>^. 

Year  of  the  People's  Rule 
IN  Oregon,  by  George  H. 
Haynes,   233-278. 

Zurich,  Canton  of,  in  Switzer- 
land, direct  legislation  in, 
157- 


(1) 


NATIONAL   MUNICIPAL   LEAGUE   SERIES 

Edited  by  CLINTON  ROGERS  WOODRUFF 

Secretary  of  the  National  Municipal  League 


City  Government  By  Commission 

Edited  by  Clinton  Rogers  Woodruff.  lamo.  Cloth, 
$1.50  net;  by  mail,  $1.62. 

A  complete  history  of  the  Commission  Government  movement,  showing  the 
fruits  of  the  latest  experience  and  the  most  modern  thought  on  the  subject. 
The  aim  has  been  to  state  fairly  both  sides  of  the  question.  The  book  gives 
in  compact  form  a  clear  definition  and  description  of  the  system,  a  discussion 
of  the  principles  underlying  it,  arguments  for  and  against  it,  accounts  of  its 
actual  operation,  and  a  summary  of  the  results  which  have  followed  its  appli- 
cation. Included,  also,  are  texts  of  several  typical  commission  charters,  impor- 
tant tables,  showing  the  features  of  cities  which  are  now  governed  by  commis- 
sions, and  a  large  amount  of  statistics. 

The  Initiative,  Referendum,  and  Recall 

Edited  by  William  Bennett  Munro,  Assistant  Pro- 
fessor of  Government  in  Harvard  University.  121110. 
Cloth,  $1.50  net;   by  mail,  $1.62. 

This  volume  explains  in  fullest  detail  the  principles  of  the  methods  of  direct 
legislation,  traces  the  history  of  the  development  in  America,  and  gives  in  com- 
pact form  the  arguments  for  and  against  the  initiative,  referendum,  and  recall, 
and  the  results  of  the  operation  of  one  or  another  of  them  in  certain  places. 
The  book  contains  the  valuable  and  important  papers  on  the  subject  of  govern- 
ment which  have  been  presented  to  the  National  Municipal  League  by  such 
eminent  publicists  as  Colonel  Theodore  Roosevelt,  Governor  VVoodrow  Wilson, 
Pre^ident  Lowell  of  Harvard,  Congressman  McCali,  Professors  Johnson  and 
Haynes,  Robert  Treat  Payne,  and  others. 

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Finance  and  Commerce,  University  of  Pennsylvania. 
121110.     Cloth,  $1.50  net ;  by  mail,  51-62. 

This  volume  covers,  as  the  title  indicates,  the  whole  subject  of  municipal 
franchises,  including,  of  course,  transportation,  telephone,  and  lighting.  About 
half  of  the  book  has  been  written  by  the  editor  himself,  and  the  remaining  chap- 
ters consist  of  important  contributions  to  the  subject  bv  such  authorities  as 
Dr.  Delos  K.  Wilcox,  of  the  Public  Service  Commission  of  New  Vork  City;  Hon. 
B.  H.  Meyer,  of  the  Federal  Court  of  Commerce;  J.  W.  S.  Peters,  President 
of  the  City  Club  of  Kansas  City;  J.  P.  Easton,  Secretary  of  the  Franchise  League 
of  Boston;  Dr.  Robert  H.  Whitten,  of  Public  Service  Commission  No.  i,  and 
others. 

D.     APPLE  TON     AND     COMPANY 

PUBLISHERS  NEW  YORK 

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"An  important  contribution  to  the  study  of  American  social  con- 
ditions."— Boston  Herald. 


The  Southern  South 

By  Albert  Bushnell  Hart,  LL.D.,  Ph.D.,  Litt.D., 
Professor  of  History  at  Harvard  University  ;  President 
American  Historical  Association.  With  colored  map. 
i2mo.     Cloth,  ^1.50  net. 

"  Mr.  Hart  chooses  as  his  field  the  far  South,  purer  in 
Southern  strain  than  the  modified  borderland  between  North 
and  South.  Out  of  its  foundation  of  climate,  soil  and  topog- 
raphy are  rapidly  drawn  occupation,  habit,  disposition,  out- 
look and  temperament  of  the  Southern  people.  This  is  the 
present  common  highway  of  investigation,  yet  not  all  set  out 
so  briskly,  or  make  so  straight  a  course,  or  attract  so  close 
attention  in  the  passage.  The  people  are  themselves  classified 
sharply  as  whites  and  negroes.  An  examination  and  discussion 
of  the  Southern  temperament,  psychologically  and  historically 
based,  makes  a  chapter  of  deep  interest,  that  of  the  character 
of  the  negro  another.  The  remainder  of  the  study  is  given  up 
to  the  supreme  problem  of  the  relation  of  the  races  in  the 
economic  and  moral  development  of  the  South.  The  negro 
at  home  and  in  industry ;  race  association  and  separation  ; 
white  and  negro  education  ;  crime,  and  peonage,  are  among 
the  pertinent  and  pressing  subjects  brought  out  here  in  a  fair- 
minded,  unevasive  spirit,  buttressed  by  official  evidence  and 
personal  research." — Washington  Star. 

"  One  of  the  most  important  books  on  this  issue  that  has 
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expression.  His  inquiry  includes  some  features  of  the  problem 
not  often  considered." — Brooklyn  Eagle. 


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